29th  Congress,                 Rep.  No.  47.                   Ho.  op  Rrps, 
2c?  Session.  "  r 


NEW  HAMPSHIRE  CLAIM. 

[To  accompany  bill  H.  R.  No.  5S2.] 


January  20,  1347. 


Mr.  Ramsey,  from  the  Committee  on  Military  Affairs,  made  the  following 

REPORT : 

The  Committee  on  Military  Affairs,  to  whom  was  referred  House  of  Rep- 
resentatives bill  JVo.  582,  entitled  *  A  bill  for  the  settlement  of  the  claim 
of  the  Stale  of  wVcw  Hampshire  against  the  United  States,"  respectf  ully 
submit  the  following  report  : 

That  this  subject  has  been  before  Congress  for  some  time,  and  during 
the  last  session  met  with  a  favorable  report  from  the  Military  Com- 
mittee, and  which,  as  their  opinions  have  undergone  no  change  in  this 
matter,  is  hereto  annexed  : 

"  '  In  the  winter  of  1835-'36  the  northern  part  of  the  State  of  New 
Hampshire,  bordering  upon  Canada,  became  much  disturbed  by  the  con- 
flicting authorities  of  the  State  and  province,  so  that  bodies  of  armed  men 
were  found  opposed  to  each  other  in  support  of  the  judicial  process  issued 
by  the  officers  of  their  respective  governments.  To  sustain  itsjurisdic- 
tion,  the  State  of  New  Hampshire  called  into  service  a  small  body  of  its 
militia,  which  continued  to  occupy  the  disturbed  country  for  several 
months,  until  quiet  was  restored  by  the  general  acknowledgment  of  the 
jurisdiction  of  New  Hampshire  and  the  peaceable  enforcement  of  her 
laws. 

"  {  The  treaty  of  1783  required  the  dividing  line  between  the  United 
States  and  Canada  to  pass  '  along  the  highlands  which  divide  those  rivers 
that  empty  themselves  into  the  river  St.  Lawrence  from  those  which  fall 
into  the  Atlantic  ocean,  to  the  northwestemmosthead  of  Connecticut  river, 
thence  down  along  the  middle  of  that  river  to  the  45th  degree  of  north 
latitude.'  The  question  which  of  the  several  points  was  the  northwestem- 
mosthead of  Connecticut  river  was,  among  others,  referred  to  the  King 
of  the  Netherlands  for  his  arbitrament,  who  decided  in  favor  of  the  preten- 
sions of  Great  Britain,  and  thus  took  from  New  Hampshire  a  considerable 
tract  of  country  over  which  her  jurisdiction  had  been  quietly  and  uninter- 
ruptedly exercised  from  the  earliest  period  of  its  settlement.  It  may  be 
proper  to  remark  that  this  decision  was  probably  owing  to  the  incorrect- 
ness of  the  geographical  information  then  possessed  by  either  Great  Bri- 
tain or  the  United  States ;  the  commissioners  of  both  governments  having 
stopped  short  in  their  survey  before  they  arrived  at  this  part  of  it.  By  the 
map  constructed  by  the  New  Hampshire  commissioners,  it  is  seen  that  the 
Ritchie^  &  Heiss,  print.  ,j  ,v» 


255 

2  Rep.  No.  47. 

branch  of  Connecticut  river  adopted  by  the  arbiter  as  the  northwestern- 
most  head  never  approaches  the  highlands  at  all,  and  consequently  aline 
passing  along  said  highlands  could  not  possibly  reach  it.  On  the  con- 
trary, the  boundary  line  thus  prescribed  would  have  to  diverge  from  the 
highlands  at  some  uncertain  point,  and  actually  cross  another  river,  before 
it  could  strike  what  was  said  to  be  the  head  of  Connecticut  river.  Such 
a  boundary  cannot  be  said  to  be  in  compliance  with  the  treaty,  or  even  an 
approximation  towards  it.' — Report  of  Mr.  Howard,  Chairman  of  the 
Committee  on  Foreign  Affairs,  1839. 

"  The  scene  of  the  disturbances  before  alluded  to  was  in  that  part  of  the 
county  of  Coos,  in  the  State  of  New  Hampshire,  north  of  the  forty-fifth 
degree  of  north  latitude,  commonly  called  the  Indian  Stream  territory.  It 
consists  of  about  one  hundred  thousand  acres,  and  contains  four  or  five 
hundred  inhabitants.  Since  its  settlement,  which  took  place  as  far  back 
as  the  year  1790,  the  State  of  New  Hampshire  had  always  exercised  un- 
disputed jurisdiction  there,  up  to  the  time  of  the  award  of  the  King  of 
the  Netherlands.  Disturbances  then  arose;  the  territory  was  asserted, 
by  those  who  fomented  the  disturbances,  to  belong  to  the  province  of 
Lower  Canada,  and  the  inhabitants  were  exhorted  openly  to  resist  the 
laws  of  the  State,  and  assured  of  the  protection  of  the  Canadian  authori- 
ties. It  will  be  readily  seen  that  during  the  pendency  of  the  award  of 
the  King  of  the  Netherlands  the  State  of  New  Hampshire  was  paralyzed. 
She  could  not  take  efficient  measures  to  quell  the  difficulties  which  had 
arisen  in  consequence  of  the  award,  without  placing  herself  in  an  attitude 
hostile  to  the  policy  of  the  general  government.  But,  after  some  time  had 
elapsed,  the  award  was  finally  set  aside,  both  by  the  United  States  and 
Great  Britain.  The  State  of  New  Hampshire  was  then  remitted  to  her 
original  rights  and  duties. 

"  It  is  unnecessary  to  go  into  a  minute  detail  of  all  the  occurrences 
which  arose  from  these  conflicts  of  jurisdiction.  In  October,  1835,  which 
was  a  period  after  the  rejection  of  the  award,  an  officer  under  Canadian 
authority  came  into  the  settlement  and  arrested  one  of  the  inhabitants, 
who  was  forcibly  rescued  by  his  neighbors.  The  offence  charged  con- 
sisted in  his  having  assisted  a  deputy  sheriff  of  the  county  of  Coos,  New 
Hampshire,  in  the  discharge  of  his  duties.  Several  conflicts  took  place, 
and  blood  was  shed  in  the  progress  of  these  disturbances,  which  grew 
directly  out  of  the  effort  by  the  Canadian  authorities  to  exercise  jurisdic- 
tion in  the  territory. 

"  The  State  applied  to  the  general  government  to  send  tioops  to  sustain 
the  jurisdiction  of  the  State,  but  the  general  government  thought  proper 
to  decline.  The  State  had  then  no  alternative  except  to  abandon  her  ju- 
risdiction over  this  territory,  as  much  her  own  as  any  part  of  the  soil 
within  her  limits,  or  to  take  decided  measures  to  maintain  it.  She  thought 
it  due  to  those  of  her  citizens  inhabiting  that  territory  who  had  loyally 
exerted  themselves  to  sustain  the  rights  of  the  State  and  of  the  United 
States,  and  who  had  assisted  her  officers  in  serving  process  under  her 
laws,  to  protect  them,  and  not  suffer  them  to  be  arrested  on  her  own  soil 
by  officers  acting  under  a  foreign  power,  and  hurried  out  of  her  limits 
and  imprisoned  in  a  foreign  land.  The  legislature  of  the  State,  therefore, 
unanimously  determined  to  station  a  small  military  force  in  the  territory, 
which  force  was  continued  there  until  order  was  entirely  restored.  This 
was  done  in  the  most  economical  manner,  the  whole  expenses  claimed 


Rep.  No.  47. 


3 


amounting  to  a  little  over  six  thousand  dollars;  and  the  result  has  vindi- 
cated the  wisdom  and  propriety  of  the  measure. 

"  In  February,  1S36,  Mr.  Bankhead,  the  British  minister,  communicated 
to  Mr.  Forsyth,  Secretary  of  State,  a  complaint  of  LordGosford,  governor 
of  Canada,  accompanied  by  a  report  of  commissioners  appointed  by  him 
to  inquire  into  the  Indian  Stream  difficulties.  Among  the  subjects  of 
complaint,  one  refers  to  the  '  continual  attemps  of  the  State  of  New 
Hampshire  to  exercise  jurisdiction  and  enforce  its  laws  within  a  territory 
which,  until  it  shall  be  formally  adjudged  to  be  part  of  the  United  States, 
under  the  treaty  of  1783,  must  be  considered  as  still  undetached  from  the 
original  possession  of  Great  Britain,  and  its  inhabitants  consequently 
within  the  protection  of  her  government.' 

"  Another  refers  to  i  the  military  occupation,  by  the  State  of  New  Hamp- 
shire, of  the  territory  in  question.' 

"  The  report  of  the  commissioners  appointed  by  Lord  Gosford  alludes  to 
a  warrant  issued  by  Mr.  Rae,  a  Canadian  magistrate,  for  the  arrest  of  two 
of  the  citizens  of  New  Hampshire,  who  assisted  in  serving  legal  process  in 
the  territory  as  one  issued  by  him  <  acting  in  the  course  of  his  duty  as  a 
magistrate  in  co?iscqucnce  of  an  assurance  given  to  the  inhabitants  of  In- 
dian Stream  that  they  should  be  protected  by  the  government  of  this 
province.' 

"  These  complaints  were  transmitted  by  the  general  government  to  the 
authorities  of  the  State  of  New  Hampshire.  Three  commissioners  were 
appointed  by  a  resolution  of  the  legislature  of  June  18, 1836,  "  to  repair  to 
Indian  Stream  and  collect  and  arrange  such  testimony  as  may  be  obtained, 
to  rebut  and  explain  the  charges  and  testimony  obtained  and  preferred 
against  the  authorities  and  citizens  of  this  State,  by  Lord  Gosford,  governor 
of  the  province  of  Lower  Canada.' 

"  The  commissioners  attended  to  the  duty  assigned  them,  and, in  Novem- 
ber following,  made  a  full  report,  which  is  among  the  papers  in  this  case, 
and  fully  vindicated  the  course  of  the  State  and  proved  the  unquestionable 
title  of  New  Hampshire  to  the  territory. 

"  But  the  right  of  the  State  of  New  Hampshire  to  maintain  jurisdiction  in 
this  territory,  and  her  duty  to  protect,  as  she  did,  her  citizens  in  their  lib- 
erties, on  the  failure  of  the  general  government  to  do  the  same,  cannot 
now  be  disputed,  since  by  the  treaty  of  1842,  commonly  called  the  Ash- 
burton  treaty,  the  pretensions  of  Great  Britain  of  right  over  the  territory 
were  entirely  abandoned,  and  the  territory  is  conceded  to  belong  to  New 
Hampshire. 

"  In  pursuance  of  resolutions  of  the  legislature  of  New  Hampshire,  pass- 
ed in  December,  1836,  the  governor  of  the  State  transmitted  the  account  of 
the  military  expenses  incurred  to  the  President  of  the  United  States.  The 
subject  was  brought  before  Congress  by  President  Jackson,  by  a  special 
message,  in  February,  1837. 

"  A  favorable  report  was  made  by  Mr.  Howard,  chairman  of  the  Commit- 
tee on  Foreign  Affairs,  on  the  16th  January,  1839,  but  the  subject  was 
cot  acted  on  by  the  House.  During  the  session  of  1839_'40,  a  bill  to  re- 
imburse the  State  of  New  Hampshire  passed  the  Senate  at  the  same  time 
with  a  bill  to  reimburse  the  State  of  Maine  for  a  much  larger  amount,  for 
troops  called  out  under  similar  circumstances.  On  account  of  the  press 
of  business,  these  bills  were  not  acted  on  in  the  House  of  Representatives. 


4 


Rep.  No.  47. 


The  claim  of  the  State  of  Maine  has  since  been  satisfied,  in  consequence 
of  its  having  been  included  in  the  stipulations  of  the  Ashburton  treaty. 

"  On  a  careful  consideration  of  the  case,  it  seems  to  be  entirely  clear — 

u  That  the  territory  in  question  belonged  to  New  Hampshire. 

"  That  disturbances  arose  there  in  consequence  of  a  claim  of  jurisdiction 
by  a  foreign  power,  and  attempts  to  exercise  such  jurisdiction. 

i-  That  the  State  of  New  Hampshire  succ3ssfully  maintained  the  jurisdic- 
tion of  the  State,  and  of  the  United  States,  by  calling  out  a  small  military 
force. 

"  In  addition  to  this,  it  seems  clear  that  the  disturbances  commenced  and 
increased  to  the  extent  which  rendered  the  military  force  necessary,  in 
consequence  of  the  action  of  the  general  government,  which  brought  about 
the  submission  and  the  award  of  the  King  of  the  Netherlands. 

"  The  House  of  Representatives  bill,  herewith  reported  without  amend^ 
ment,  provides  that  the  military  force  called  out  on  the  occasion  shall  be 
paid  for  in  the  same  manner  as  if  called  out  by  order  of  the  general  gov- 
ernment; and  the  committee  recommend  its  passage,  as  an  act  of  obvious 
justice  to  the  State  of  New  Hampshire."  ^ — 


58th  Congress,  \  SENATE.  j  Report 

2d  Session.      \  -  \  No.  2416. 


RELIEF  OF  THE  STATE  OF  NEW  HAMPSHIRE. 


April  22,  1904. — Ordered  to  be  printed. 


Mr.  Alger,  from  the  Committee  on  Military  Affairs,  submitted  the 

following 

REPORT. 

[To  accompany  S.  3192.] 

The  Committee  on  Military  Affairs,  ha  vino;  considered  Senate  bill 
3192,  respectfully  report: 

The  State  of  New  Hampshire,  by  two  legislative  grants,  conveyed  to 
the  United  States  3i  acres  of  land,  in  the  aggregate,  on  which  Fort 
Constitution  is  situate,  at  Portsmouth  Harbor,  with  cession  of  juris- 
diction over  the  same.  One  grant  was  made  in  1791  and  the  other  in 
1807.    Each  grant  contained  a  proviso,  in  substance  as  follows: 

Provided  further,  That  if  the  United  States  shall  at  any  time  make  any  compensa- 
tion to  any  one  of  the  United  States  for  the  cession  of  any  light-house,  fort,  or  land, 
which  hath  been  or  may  hereafter  be  made  to  the  United  States,  the  like  compensa- 
tion be  made  to  this  State  for  the  land,  fort,  and  light-house,  by  this  act  ceded,  in 
proportion  to  their  respective  values. 

The  United  States  has  paid  to  some  other  States  for  land  ceded 
for  forts  and  other  public  uses.  But  the  United  States  has  never  paid 
the  State  of  New  Hampshire  for  the  cessions  above  stated.  So,  your 
committee  finds,  that  the  United  States  is  indebted  to  the  State  of  New 
Hampshire  to  the  amount  of  the  value  of  the  said  property  ceded,  as 
above  stated. 

After  the  cessions  mentioned,  the  United  States,  under  its  power  of 
eminent  domain,  took  and  paid  for  a  few  acres  of  land  lying  between 
the  land  ceded,  as  above  mentioned,  and  the  town  of  Newcastle,  as 
now  bounded,  but  then  in  said  town.  So  there  is  a  claim  the  town 
was  deprived  of  its  authority  to  tax  the  land  so  taken. 

In  1903  the  legislature  of  New  Hampshire  passed  an  act  entitled  "An 
act  for  the  relief  of  the  town  of  Newcastle,"  claiming  pay  for  said  3i 
acres  and  reciting  the  taking  by  the  United  States  of  land  and  houses 
in  Newcastle  of  the  value  of  $60,000,  "for  military  purposes  in  extend- 
ing the  lines  of  Fort  Constitution,  thus  diminishing  the  taxable  prop- 
erty of  the  town  to  a  very  serious  degree,"  and  providing  for  an 
agent  to  collect  the  sum  due,  and  appropriating  the  money,  after 


2 


RELIEF  OF  THE  STATE  OF  NEW  HAMPSHIRE. 


deducting  the  agent's  fee,  "to  liquidate  the  debt  of  the  town,  incurred 
in  the  war  for  the  Union." 

Your  committee  can  not  assent  to  the  argument  that  these  recitals 
'  should  increase  the  amount  of  the  debt  any  more  than  that  the  fact 
that  the  State  of  New  Hampshire  had  had  the  benefit  and  protection  of 
the  fort  and  light-house  for  one  hundred  years  should  diminish  the 
debt. 

The  chief  difficulty  in  this  matter  is  to  determine  the  amount  justly 
due.  The  bill  fixes  the  amount  of  this  debt  at  $30,000;  and  affidavits 
on  file  show  that  this  point  of  land  projecting  into  the  ocean  in  front 
of  Portsmouth  Harbor,  in  the  opinion  of  the  witnesses,  could  now  be 
sold  for  more  than  that  sum  for  a  summer  residence. 

The  general  rule  seems  to  be  that  the  United  States  should  not  pay 
interest,  and  this  debt  was  never  claimed  prior  to  1903.  And  it  is 
believed  by  your  committee  that  the  debt  due  the  State  of  New  Hamp- 
shire is  the  value  of  the  property  ceded  at  the  time  of  the  cessions. 

Your  committee,  on  the  information  they  have,  fix  the  amount  of  the 
debt  due  to  the  State  of  New  Hampshire  at  $3,000,  and  the  committee 
recommend  that  the  bill  be  amended  by  striking  out  the  word  "  thirty," 
in  the  sixth  line,  and  inserting  in  place  of  said  word  so  stricken  out 
the  word  "three;"  and  that  after  being  so  amended  the  bill  do  pass. 


o 


34th  Congress,  )  HOUSE  OF  REPRESENTATIVES.   C  Mis.  Doc. 
1st  Session.    J  J  No.  56. 


REVOLUTIONARY  SOLDIERS'  CLAIMS. 


CONCURRENT  RESOLUTIONS 

OF 

THE  LEGISLATURE  OF  NEW  YORK, 

IN  REFERENCE  TO 

The  claims  of  Revolutionary  Soldiers. 


March  14,  1856,— Referred  to  the  Committee  on  Revolutionary  Claims,  and  ordered  to  be 

printed. 


State  of  New  York, 
In  Assembly ,  February  8_,  1856. 

Concurrent  resolutions  in  reference  to  the  claims  of  revolutionary 

soldiers, 

On  motion  of  Mr.  Hoyle, 

Resolved,  That  we  have  witnessed  with  pleasure  the  efforts  which 
were  made  during  the  recent  session  of  Congress  for  the  final  settle- 
ment and  payment  of  our  revolutionary  debt ;  we  consider  that  our 
government  is  under  the  most  solemn  obligation  to  carry  out  the 
promises  of  the  Continental  Congress,  as  contained  in  the  resolutions 
of  the  21st  of  October,  1780,  January  7th,  1781,  and  March  8th,  1785, 
by  allowing  to  the  officers  of  the  revolutionary  army  the  half-pay  for 
life,  to  which  they  are  entitled  under  those  resolutions,  for  the  pay- 
ment of  which  the  national  faith  is  pledged  ;  and  all  those  senators 
and  members  who  have  taken  an  active  interest  in  behalf  of  the 
officers  of  the  Revolution,  their  widows  and  children,  are  entitled  to 
the  thanks  and  gratitude  of  the  country. 

Resolved,  That  our  senators  in  Congress  be  instructed,  and  our 
members  of  the  House  of  Representatives  be  requested,  to  advocate 
and  vote  for  a  bill  to  provide  for  the  final  settlement  and  payment 
of  the  half-pay  for  life  which  was  promised  by  the  Continental  Con- 
gress to  the  officers  of  the  revolutionary  army  who  should  serve  to 
the  end  of  the  war,  or  until  the  time  of  their  reduction,  deducting  the 


2 


CLAIMS  OF  REVOLUTIONARY  SOLDIERS. 


value  of  the  commutation  certificates  issued  in  their  names  ;  and  that 
the  amount  found  due  he  paid  to  the  olficer  if  alive,  and  if  dead,  to 
his  widow  and  children  equally,  of  such  deceased  officer  ;  and  that 
suitable  provision  be  made  for  the  widows  and  children  of  those 
officers  who  were  killed  in  battle  or  died  in  the  service ;  and  that 
such  bill  conform  to  the  principles  and  promises  contained  in  the  reso- 
lutions of  October  21,  1780,  January  7,  1781,  and  8th  of  March,  1785. 

Resolved,  That  the  pension  law  ought  to  be  extended  to  the  widows 
of  those  officers,  soldiers,  and  seamen  who  have  died,  or  may  here- 
after die,  in  the  land  or  naval  service  of  the  United  States,  without 
requiring  proof  that  the  disease  of  which  they  died  was  contracted  in 
the  service. 

Resolved,  That  the  subsequent  marriage  of  a  widow  who  was  enti- 
tled to  a  pension  or  bounty  land  in  virtue  of  any  law  of  the  United 
States  ought  not  to  prevent  her  from  receiving  such  pension  or  land, 
provided  she  be  otherwise  entitled  to  the  same ;  nor  ought  any  woman 
whose  husband  was,  or  if  living  would  be,  entitled  to  a  pension  or 
bounty  land  under  any  law  of  the  United  States,  to  be  prevented  from 
receiving  a  pension  or  land  as  his  widow,  notwithstanding  she  may 
have  been  divorced  from  her  said  husband,  provided  he  was  the 
offending  party. 

Resolved,  That  our  senators  from  this  State  be  instructed,  and  our 
members  in  Congress  be  requested,  to  advocate  and  vote  for  a  law 
declaring  that  all  pensions  for  wounds  received  or  disabilities  in- 
curred in  the  line  of  duty  in  the  military  and  naval  service  of  the 
United  States  during  any  of  the  wars  in  which  our  country  has  been 
engaged,  instead  of  commencing  from  the  completion  of  the  proof,  as 
is  now  practised  at  the  department,  shall  commence  at  and  from  the 
date  of  the  disability,  and  continue  during  life,  or  during  disability  ; 
and  in  case  of  the  death  of  such  invalid,  the  arrears  of  pension  due  him 
shall  be  paid  to  his  widow  if  alive,  and  if  no  widow,  to  his  child  or 
children,  and  if  none,  to  his  legal  representatives  for  the  benefit  of 
the  next  of  kin  of  such  deceased  invalid.  The  laws  under  which 
these  men  entered  the  service  may  well  be  said  to  have  formed  a 
contract  between  the  government  and  the  soldier,  that  if  he  should  be 
injured  or  disabled  while  in  the  line  of  his  duty  in  the  public  service, 
he  should  be  pensioned  according  to  the  degree  of  his  disability,  and 
to  commence  when  his  disability  commenced  ;  and  we  respectfully 
•ask  the  adoption  of  this  principle  by  Congress,  as  due  upon  every 
consideration  of  good  faith,  honor,  and  justice  to  those  brave  men 
who  fought  our  battles,  and  shed  their  blood  in  defence  of  our  coun- 
try's rights  and  independence. 

A  true  copy  from  the  journal : 

KICHAKD  U.  SHERMAN,  Clerk. 


Ix  Senate,  February  28,  1856. 
Resolved,  That  the  Senate  concur  in  the  passage  of  the  foregoing 
resolutions. 
By  order  : 

SAMUEL  P.  ALLEN,  Clerk. 


35th  Congress,  ) 
1st  Session.  ) 


SENATE. 


{  Mis.  Doc. 
)  No.  221. 


RESOLUTIONS 

OF  THE 

LEGISLATURE  OF  THE  STATE  OF  NEW  YORK, 

IN  FAVOR 

Of  the  enactment  of  a  law  to  provide  for  the  final  settlement  and  payment 
of  the  half  pay  for  life  which  was  promised  by  the  continental  Con- 
gress to  the  officers  of  the  revolutionary  army. 


April  5,  1858. — Referred  to  the  Committee  on  Revolutionary  Claims,  and  ordered  to  be 

printed. 


STATE  OF  NEW  YORK,  IN  ASSEMBLY,  MARCH  8,  1858. 
CONCURRENT  RESOLUTIONS  in  relation  to  the  officers  of  the  revolutionary  army. 

Resolved,  {if  the  Senate  concur,)  That,  having  witnessed  with  pleasure 
the  efforts  which  were  made  during  the  past  session  of  Congress  for 
the  final  settlement  and  payment  of  our  revolutionary  debt,  we  con- 
sider that  our  government  is  under  the  most  solemn  obligations  to 
carry  out  the  promises  of  the  continental  Congress  contained  in  the 
resolutions  of  the  21st  October,  1780,  January  7,  1781,  and  March  8, 
1785,  by  allowing  to  the  officers  of  the  revolutionary  army  the  half 
pay  for  life  to  which  they  are  entitled  under  the  resolutions,  for  the 
payment  of  which  the  national  faith  is  pledged.  That  all  those  sen- 
ators and  representatives  who  have  taken  a  lively  interest  in  behalf 
of  the  officers  of  the  revolution,  their  widows  and  children,  are  entitled 
to  the  thanks  and  gratitude  of  the  country. 

Resolved,  That  our  senators  in  Congress  be  instructed,  and  our 
members  of  the  House  of  representatives  be  requested,  to  advocate 
and  vote  for  a  bill  to  provide  for  the  final  settlement  and  payment  of 
the  half  pay  for  life  which  was  promised  by  the  continental  Congress 
to  the  officers  of  the  revolutionary  army,  who  should  serve  to  the  end 
of  the  war  or  until  the  time  of  their  reduction,  deducting  the  value 
of  commutation-certificates  issued  in  their  names,  and  that  the  amount 
found  due  be  paid  to  the  officers,  if  alive,  and  if  dead,  to  his  widow 
and  children  equally,  and  if  none,  to  the  next  of  kin  of  such  deceased 
officer  ;  and,  also,  that  suitable  provision  be  made  for  the  widows  and 
children  of  those  officers  who  were  killed  in  battle,  or  died  in  the 
service  ;  and  that  such  bill  conform  to  the  principles  contained  in  the 


2 


HALF  PAY  FOR  LIFE  TO  OFFICERS  OF  THE  REVOLUTION. 


resolutions  of  October  21,  1780,  July  7,  1781,  and  5th  March,  1785, 
and  we  respectfully  ask  the  adoption  of  this  principle  and  the  passage 
of  the  hill  by  Congress,  as  due  by  every  consideration  of  good  faith, 
honor  and  justice,  to  those  brave  men  who  fought  our  battles  and  shed 
their  blood  in  defence  of  our  country's  rights  and  independence. 

Resolved,  That  his  excellency  the  governor  cause  these  resolutions 
to  be  transmitted  to  the  president  of  the  Senate  and  the  speaker  of 
the  House  of  Representatives  of  the  United  States,  for  the  considera- 
tion of  those  bodies  respectively,  and  to  each  of  the  senators  and 
representatives  in  Congress  from  this  State. 

In  assembly,  March  8,  1858.    Were  duly  passed. 

By  order,  &c,  D.  WILSON,  Clerk. 

In  the  senate,  March  13,  1858.    Were  duly  passed. 

By  order,  &c,  S.  P.  ALLEN,  Clerk. 


STATE  OF  NEW  YORK. 

Executive  Department, 
Albany,  March  25,  1858. 
Sir  :  I  am  directed  by  the  governor  to  transmit,  herewith,  concurrent 
resolutions  of  the  senate  and  assembly,  "in  relation  to  the  officers  of 
the  revolutionary  army." 

Very  respectfully,  your  obedient  servant, 

HENRY  J.  SEAMAN, 

Private  Secretary. 

Hon.  Wm.  H.  Seward,  Senate. 


* 


35th  Congress,  )  HOUSE  OF  REPRESENTATIVES.  (  Mis.  Doc. 
1st  Session.    )  (  No.  111. 


OFFICERS  OF  THE  REVOLUTIONARY  ARMY. 


RESOLUTIONS 

OF  THE 

LEGISLATURE  OF  THE  STATE  OF  NEW  YORK, 

IN  RELATION  TO 

The  claims  of  officers  of  the  revolutionary  army,  their  widows  and 

children. 


April  5,  1858. — Referred  to  the  Committee  on  Revolutionary  Claims. 


STATE  OF  NEW  YORK,  IN  ASSEMBLY,  MARCH  8,  1858. 
CONCURRENT  RESOLUTIONS  in  relation  to  the  officers  of  the  revolutionary  army. 

Resolved,  {if  the  Senate  concur,)  That,  having  witnessed  with  pleasure 
the  efforts  which  were  made  during  the  past  session  of  Congress  for 
the  final  settlement  and  payment  of  our  revolutionary  debt,  we  con- 
sider that  our  government  is  under  the  most  solemn  obligations  to 
carry  out  the  promises  of  the  continental  Congress  contained  in  the 
resolutions  of  the  21st  October,  1780,  January  7,  1781,  and  March  8. 
1785,  by  allowing  to  the  officers  of  the  revolutionary  army  the  half- 
pay  for  life  to  which  they  are  entitled  under  the  resolutions,  for  the 
payment  of  which  the  national  faith  is  pledged.  That  all  those  sen- 
ators and  representatives  who  have  taken  a  lively  interest  in  behalf 
of  the  officers  of  the  revolution,  their  widows  and  children,  are  entitled 
to  the  thanks  and  gratitude  of  the  country. 

Resolved,  That  our  senators  in  Congress  be  instructed,  and  our 
members  of  the  House  of  Representatives  be  requested,  to  advocate 
and  vote  for  a  bill  to  provide  for  the  final  settlement  and  payment  of 
the  half-pay  for  life  which  was  promised  by  the  continental  Congress 
to  the  officers  of  the  revolutionary  army,  who  should  serve  to  the  end 
of  the  war  or  until  the  time  of  their  reduction,  deducting  the  value 
of  commutation  certificates  issued  in  their  names,  and  that  the  amount 
found  due  be  paid  to  the  officers,  if  alive,  and  if  dead,  to  his  widow 
and  children  equally,  and  if  none,  to  the  next  of  kin  of  such  deceased 
officer  ;  and,  also,  that  suitable  provision  be  made  for  the  widows  and 
children  of  those  officers  who  were  killed  in  battle,  or  died  in  the 
service  ;  and  that  such  bill  conform  to  the  principles  contained  in  the 


2         HALF-PAY  FOR  LIFE  TO  OFFICERS  OF  THE  REVOLUTION. 


resolutions  of  October  21,  1780,  July  7,  1781,  and  5th  March,  1785, 
and  we  respectfully  ask  the  adoption  of  this  principle  and  the  passage 
of  the  bill  by  Congress,  as  due  by  every  consideration  of  good  faith, 
honor  and  justice,  to  those  brave  men  who  fought  our  battles  and  shed 
their  blood  in  defence  of  our  country's  rights  and  independence. 

Resolved,  That  his  excellency  the  governor  cause  these  resolutions 
to  be  transmitted  to  the  President  of  the  Senate  and  the  Speaker  of 
the  House  of  representatives  of  the  United  States,  for  the  considera- 
tion of  those  bodies,  respectively,  and  to  each  of  the  senators  and 
representatives  in  Congress  from  this  State. 

In  assembly,  March  8,  1858.    Were  duly  passed. 

By  order,  &c,  D.  WILSON,  Clerk. 


In  the  senate,  March  13,  1858.    Were  duly  passed. 

By  order,  &c,  S.  P.  ALLEN,  Clerk. 


35th  Congress,  \  HOUSE  OF  REPRESENTATIVES.  C  Mis.  Doc. 
2d  Session.    \  (    No.  27 


HALF-PAY  OF  OFFICERS  OF  THE  REVOLUTION. 


RESOLUTIONS 

OF  THE 

LEGISLATURE  OF  THE  STATE  OF  RHODE  ISLAND, 

IN  REFERENCE  TO 

The  half -pay  of  officers  of  the  revolution. 


January  15,  1859. — Laid  upon  the  table  and  ordered  to  be  printed. 

STATE  OF  RHODE  ISLAND  AND  PROVIDENCE  PLANTATIONS, 

May  Session.  A.  D.,  1858. 
RESOLUTIONS  in  relation  to  the  half-pay  of  officers  of  the  revolution. 

Whereas  the  resolves  of  October  21,1780,  and  other  acts  of  Con- 
gress, promising  half-pay  to  the  officers  of  the  continental  army  who 
should  serve  to  the  end  of  the  war,  passed  in  pursuance  of  the 
recommendation  of  General  Washington,  for  the  purpose  of  prevent- 
ing the  frequent  resignations  of  officers  and  the  consequent  dissolu- 
tion of  the  army,  formed  a  contract  between  the  United  States  and 
the  said  officers,  in  their  individual  capacity  ;  and 

Whereas  Congress,  on  the  22d  day  of  March,  1783,  passed  a 
commutation  act  granting  to  said  officers  five  years'  full  pay  instead  of 
half-pay  for  life,  which  latter  act  was  not  submitted  to  the  officers 
individually ,  for  their  acceptance,  but  to  lines  and  States,  thereby, 
and  in  consequence  of  the  depreciation  of  the  certificates  of  commuta- 
tion, avoiding,  in  a  great  measure,  the  grant  previously  made,  and 
causing  the  officers  who  had  so  gallantly  performed  their  part  of  the 
contract  in  achieving  the  independence  of  their  country  to  realize  but 
a  pittance  from  such  certificate  ;  and 

Whereas  this  general  assembly  has  learned  with  pleasure  that 
efforts  are  being  made  in  the  present  Congress  for  the  just  settlement 
of  this  debt,  to  the  payment  of  which  the  faith  and  honor  of  the 
government  of  the  United  States  have  been  pledged  :    Therefore — 

Resolved,  That  our  senators  and  representative  in  Congress  be  re- 
quested to  advocate  and  vote  for  a  bill  to  provide  for  the  payment  for 


2 


HALF-PAY  OF  OFFICERS  OF  THE  REVOLUTION. 


the  half-pay  for  life,  which  was  promised  hy  the  continental  Congress 
to  the  officers  of  the  revolutionary  army,  in  the  resolves  of  Congress 
passed  October  21,  1780,  and  subsequently,  deducting  the  value  of 
the  commutation  certificates  issued  in  favor  of  such  officers,  and  to 
cause  the  amount  found  due  to  be  paid  to  them  if  living,  and  if  dead 
to  their  lineal  descendants,  and  if  none,  to  the  next  of  kin  of  such 
deceased  officers  ;  and  also  that  suitable  provision  be  made  for  the 
widows  and  children  of  those  officers  who  were  killed  in  battle  or 
died  in  service. 

Resolved,  That  copies  of  these  resolutions  be  transmitted  by  the 
Secretary  of  State  to  each  of  the  senators  and  representatives  in  Con- 
gress from  this  State. 

A  true  copy.    Attest  : 

JOHN  K.  BARTLETT, 

Secretary  of  State. 

Office  of  the  Secretary  of  State, 
Providence,  Rhode  Island,  June  3,  1858. 
Sir  :  Annexed  I  have  the  honor  to  transmit  to  you  certain  resolu- 
tions passed  by  the   general  assembly  of  this  State  at  its  late 
May  session. 

I  remain,  very  respectfully,  your  obedient  servant, 

JOHN  R.  BARTLETT, 

Secretary  of  State. 

Hon.  Wm.  D.  Brayton,  Washington,  D.  C. 


\ 


f 


35th  Congress, 
1st  Session. 


SENATE. 


(  Mis.  Doc. 
I  No.  87. 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


February  21,  1857. — Received  and  referred  to  the  Committee  on  Claims. 
December  18,  1857. — Referred  to  the  Committee  on  Claims  and  ordered  to  be  printed. 

The  Court  of  Claims  submitted  the  following 
REPORT. 

To  the  honorable  the  Senate  and  House  of  Representatives  of  the  United 
States  in  Congress  assembled : 

The  Court  of  Claims  respectfully  presents  the  following  documents 
as  the  report  in  the  case  of 

ESTHER  STEVENS  vs.  THE  UNITED  STATES. 

1.  The  petition  of  the  claimant. 

2.  Certificate  from  the  Pension  Office,  transmitted  to  the  House  of 
Representatives. 

3.  Opinion  of  the  Court. 

4.  Bill  for  the  relief  of  claimant. 

By  order  of  the  Court  of  Claims. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
r  n  seal  of  said  Court  at  Washington,  this  21st  day  of  February, 
LL'  S'J  A.  D.  1857. 

SAM'L  H.  HUNTINGTON, 

Chief  Clerk  Court  of  Claims. 


Esther  Stevens  vs.  The  United  States. 

To  the  honorable  the  Court  of  Claims  of  the  United  States : 

Your  petitioner,  Esther  Stevens,  of  the  county  of  Van  Buren,  and 
State  of  Michigan,  respectfully  represents  that  she  is  the  widow  of 
James  Stevens,  deceased,  who  was  an  artificer  in  the  war  of  the  revo- 
lution, and  who  died  prior  to  the  4th  of  March,  1848.  She  further 
states  that  she  was  married  to  the  said  James  Stevens  subsequent  to 
the  1st  day  of  January,  1800,  and  has  been  allowed  a  pension,  at  the 
rate  of  two  hundred  and  forty  dollars  per  annum,  on  account  of  the 
revolutionary  services  of  her  said  husband,  under  the  second  section 


2 


ESTHER  STEVENS. 


of  the  act  of  Congress,  approved  February  3,  1853,  entitled  "An  act 
to  continue  half- pay  to  certain  widows  and  orphans'/'  which  pension 
was  made  to  commence,  by  the  decision  of  the  Secretary  of  the  Inte- 
rior, un  the  3d  day  of  February,  1853,  whereas  your  petitioner  insists 
it  should  have  been  made  to  commence  on  the  4th  of  March,  1848. 
And  she  now  claims  that,  by  virtue  of  the  said  second  section  of  the 
act  of  Congress  aforesaid,  she  is  entitled  to  arrears  of  pension,  at  the 
rate  aforesaid,  from  said  4th  of  March,  1848,  to  said  3d  of  February, 
1853,  upon  which  claim  she  prays  the  judgment  of  this  honorable 
Court.  She  further  represents  that  she  is  the  sole  owner  of  said  claim, 
no  other  person  having  any  interest  therein. 

J.  J.  COOMBS, 

Attorney  for  Petitioner. 

District  of  Columbia,  1  gg 
Washington  County,  $ 

Be  it  remembered,  that  on  this  26th  day  of  May,  1856,  personally 
appeared  before  me,  the  undersigned,  a  justice  of  the  peace  in  and  for 
said  county  and  district,  J.  J.  Coombs,  who  made  oath  in  due  form 
of  law  that  all  the  facts  stated  in  the  foregoing  petition  are  true,  to 
the  best  of  his  knowledge  and  belief. 

N.  CALLAN, 

Justice  of  the  Peace. 


IN  THE  COURT  OF  CLAIMS. 

Esther  Stevens  vs.  The  United  States. 

Chief  Justice  Gilchrist  delivered  the  opinion  of  the  Court. 

This  case  is  similar  in  principle  to  the  case  of  Jane  Smith  vs.  The 
United  States,  and  the  decision  in  that  case  settles  the  right  of  the 
present  claimant  to  recover. 

The  evidence  is  contained  in  a  certificate  from  Mr.  Whiting,  Com- 
missioner of  Pensions,  dated  February  J,  1857,  in  which  he  states 
that  there  is  evidence  on  file  in  the  Pension  Office  that  James  Wilcox, 
her  husband,  died  prior  to  the  4th  of  March,  1848,  and  that  she  is 
now  in  receipt  of  a  pension  of  two  hundred  and  forty  dollars  per 
annum,  commencing  on  the  3d  of  February,  1853,  under  the  second 
section  of  the  act  of  that  date,  entitled  "An  act  to  continue  half-pay 
to  certain  widows  and  orphans." 

We  think  the  claimant  is  entitled  to  the  arrears' of  her  pension  from 
the  4th  of  March,  1848,  to  the  3d  of  February,  1853,  and  we  report  a 
bill  accordingly. 


A  BILL  for  the  relief  of  Esther  Stevens,  of  Van  Buren  county,  Michigan. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  Secretary  of  the 


ESTHER  STEVENS. 


3 


Treasury  be,  and  he  hereby  is,  directed,  out  of  any  money  in  the 
treasury  not  otherwise  appropriated,  to  pay  to  Esther  Stevens,  the 
widow  of  James  Stevens,  deceased,  an  artificer  in  the  army  of  the 
revolution,  the  sum  of  eleven  hundred  and  eighty  dollars,  being  for 
the  arrears  of  her  pension  at  the  rate  of  two  hundred  and  forty  dol- 
lars per  annum,  from  the  4th  of  March,  1848,  to  the  3d  of  February, 
1853,  to  which  she  is  entitled  under  the  second  section  of  the  act  of 
February  3,  1853,  entitled  "An  act  to  continue  half-pay  to  certain 
widows  and  orphans." 


✓ 


35th  Congress 
1st  Session. 


SENATE. 


S  Mis.  Doc. 
it  No.  113. 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


December  10,  1857. — Received. 
December  18,  1857. — Referred  to  the  Committee  on  Claims. 


The  Court  of  Claims  submitted  the  following 


REPORT. 


To  the  honorable  the  Senate  and  House  of  Representatives  of  the  United 
States  in  Congress  assembled  : 

The  Court  of  Claims  respectfully  presents  the  following  documents 
as  the  report  in  the  case  of 


1.  The  petition  of  the  claimant. 

2.  Documents  received  from  House  of  Representatives  and  trans- 
mitted to  that  House. 

3.  Document  received  from  the  Department  of  the  Interior  and 
transmitted  to  the  House  of  Representatives. 

4.  Claimant's  brief. 

5.  Opinion  of  the  Court  adverse  to  the  claim. 
By  order  of  the  Court  of  Claims. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 


To  the  honorable  Judges  of  the  Court  of  Claims  of  the  United  States  : 

The  petition  of  Francis  Nadeau,  of  Mooers,  in  the  county  of  Clin- 
ton, in  the  State  of  New  York,  one  of  the  children  of  Basil  Nadeau, 
deceased,  begs  leave  respectfully  to  represent  unto  this  honorable 
court,  that  he  is  interested  as  one  of  the  heirs-at-law  of  the  said  Basil 
Nadeau,  in  a  claim  which  the  said  Basil  Nadeau  had  against  the 
United  States  for  services  in  the  revolutionary  war.  That  his  interest 
in  said  claim  arises  from  the  consideration  that  he  is  the  son  and  heir- 


FRANCIS  NADEAU  vs.  THE  UNITED  STATES. 


2 


FRANCIS  NADEAt?, 


at-law  (and  the  only  one  now  known  to  be  living)  of  the  said  Basil 
Nadeau,  who  died  intestate,  on  or  about  the  eleventh  day  of  July, 
A.  D.  1841. 

And  your  petitioner  further  shows  to  this  honorable  court  that  the 
said  Basil  Nadeau  enlisted  in  1776  for  and  during  the  war  in  Colonel 
Moses  Hazen's  regiment  in  the  continental  line,  and  served  therein 
to  the  close,  or  until  discharged  by  Congress ;  and  that  the  before 
mentioned  claim  is  founded  on  a  resolution  of  Congress,  passed  the 
15th  day  of  May,  1778,  which  provides  that  those  soldiers  who  en- 
listed for  and  during  the  war,  and  continued  in  its  service  until  its 
termination,  were  entitled  to  the  reward  of  eighty  dollars  ;  and  for 
which  your  petitioner  is  informed  a  certificate  issued,  bearing  interest 
at  the  rate  of  six  per  cent.,  on  or  about  the  first  day  of  March,  1784, 
which  certificate,  if  ever  delivered,  is  now  lost  ;  and  that  said  reward 
has  never  been  paid  or  transferred,  as  your  petitioner  is  informed  and 
verily  believes  true. 

And  your  petitioner  further  showeth  that,  previous  to  said  Nadeau's 
^enlistment  for  the  war,  to  wit :  on  the  16th  day  of  September,  1776, 
Congress  passed  a  resolution  giving  §20  bounty  money,  and  granting 
bounty  lands  of  1 00  acres  to  those  who  enlisted  for  the  war,  continued 
therein  to  the  close  of  the  war,  or  until  discharged  by  Congress.  And 
your  petitioner  further  shows,  that  he  made  application  to  the  Com- 
missioner of  Pensions  fur  said  land,  which  application  was  denied ; 
also,  that  he  applied  to  Congress  for  said  land  in  1854,  but  what  ac- 
tion was  had  thereon  he  is  not  informed. 

Your  petitioner  therefore  prays  that  this  honorable  court  will  ex- 
amine said  claim,  and  report  a  bill  to  Congress  for  the  payment  thereof, 
with  the  interest  thereon,  unto  the  heirs  or  legal  representatives  of  the 
said  soldier,  or  such  other  order  or  bill  as  to  your  honors  shall  seem 
fit  and  proper  in  the  premises,  and  for  said  land. 

And  your  petitioner,  as  in  duty  bound,  will  ever  pray. 

his 

FRANCIS  +  NADEAU. 
mark. 

Dated  Rousse's  Point,  August  3,  1855. 


■  State  or  New  York,  )  §s 
County  of  Clinton,  ) 

Francis  Nadeau,  of  Mooers,  in  the  county  of  Clinton,  in  the  State 
of  New  York,  being  duly  sworn,  doth  depose  and  say  that  the  peti- 
tion above,  by  him  subscribed,  contains  the  truth,  according  to  the 
best  of  his  information  and  belief. 

his 

FRANCIS  +  NADEAU. 
mark. 

Sworn  and  subscribed  before  me,  this  3d  dav  of  August,  A.  D.  1855. 

JOHN  BULL1S, 

Justice  of  the  Peace. 


FRANCIS  XADEAU. 


3 


IN  COURT  OF  CLAIMS. 

Francis  Nadeau,  ) 

vs.  >  Claimant's  Points  and  Brief. 

The  United  States.  3 

I.  This  claim,  like  the  claims  of  officers  under  the  resolutions  of 
the  21st  of  October,  1780,  and  March  22,  1783,  must  he  regarded  as  in 
the  nature  of  an  express  contract. — (See  Mayo  &  Moulton,  Introduc- 
tion, vii,  page  177.) 

This  claim  is  founded  on  the  resolution  of  Congress  of  15th  of  May, 
1778,  and  entitled  the  ancestor  of  claimant  to  the  reward  of  $80,  for 
services  rendered,  and  continued  to  the  end  of  the  war.  Here  was 
work,  lahor  and  services  performed,  as  the  consideration  for  the  re- 
ward, and  the  books  show  him  entitled  to  the  certificate,  on  the  1st 
day  of  March,  1784,  and  does  not  show  it  paid. 

II.  As  a  debt  or  claim  due,  and  payment  withheld,  all  the  legal 
consequences  attach  between  the  United  States  and  the  claimants,  as 
in  the  case  of  individuals,  as  it  respects  the  claim  of  interest. 

And  Congress  designed  that  interest  should  be  paid  "  on  all  claims 
and  to  all  creditors  of  the  United  States  from  the  time  payment  became 
due." — (See  Compend.  &c,  on  revolutionarv  claims,  Document  No. 
42,  for  1837,38.) 

III.  Congress  has  acknowledged  the  obligation  to  pay  the  principal 
in  an  analogous  case. — (See  Colin  McLaughlin's  Bill  249,  passed  2d 
ses.  21st  Congress  ;  Report  1st  Ses.  21  Cong.  No.  194,  as  follows  :) 

IV.  Claims  to  be  eDtitled  to  100  acres  of  land  under  resolve  of  Con- 
gress September  16,  1776. 

REPORT. 

"  The  petitioner  claims  and  satisfactorily  proves,  that  by  his  services 
as  a  sergeant  in  Col.  Moses  Hazen's  regiment  in  the  army  of  the 
revolution,  to  the  end  of  the  war,  (having  then  been  discharged  and 
honored  with  the  badge  of  merit,)  he  became  entitled  to  the  reward  of 
$80,  offered  by  the  resolve  of  Congress  of  May  15,  1778. 

The  only  question  remaining  is  whether  he  received  this  reward  ? 

No  register  or  other  evidence  has  been  found  showing  that  it  has 
ever  been  paid.  The  petitioner  has  made  oath,  in  an  accompaying 
affidavit  that  he  has  never  received  it. 

The  character  of  the  petitioner  for  veracity  is  supported  by  certifi- 
cates of  respectable  individuals  acquainted  with  him. 

The  committee  believe,  under  view  of  all  the  evidence,  that  it  would 
be  unjust  to  withhold  the  reward  from  him,  and  therefore  report  a  bill 
directing  the  payment  to  him  of  the  original  sum  of  eighty  dollars.' ' 

C.  K.  AVERILL, 

Attorney  for  Claimant. 


4 


FRANCIS  NADEAU. 


INT  THE  COUET  OF  CLAIMS. 
FRANCIS  NADEAU  vs.  THE  UNITED  STATES. 

Chief  J ustice  Gilchrist  delivered  the  opinion  of  the  Court. 

The  petitioner  alleges  that  he  is  the  only  son  and  heir-at-law  of 
Basil  Nadeau,  who  died  on  the  11th  of  July,  1841,  and  who  was  a 
soldier  in  the  army  of  the  revolution.  The  petition  states  that  Basil 
Nadeau  enlisted  in  1776,  for  and  during  the  war,  in  Colonel  Moses 
Hazen's  regiment  in  the  continental  line,  and  served  therein  to  the 
close  of  the  war,  or  until  discharged  by  Congress.  The  claim  is 
founded  on  the  resolutions  of  Congress  of  the  15th  of  May,  1778, 
providing  that  soldiers  who  enlisted  for  and  during  the  war,  and  con- 
tinued in  service  until  its  termination,  should  be  entitled  to  a  reward 
of  $80.  For  this  the  petitioner  was  informed  that  a  certificate  issued, 
with  interest  at  six  per  cent.,  on  or  about  the  1st  day  of  March,  1784, 
which  certificate,  if  ever  delivered,  is  now  lost,  and  that  this  reward 
has  never  been  paid  or  transferred  as  the  petitioner  is  informed  and 
believes. 

It  is  sufficient  to  say  in  relation  to  this  claim  that  the  decision  in 
the  case  of  Philip  Lamoy  vs.  the  United  States  is  applicable  to  this 
case,  and  settles  that  the  claimant  has  no  cause  of  action. 

The  petitioner  makes  a  further  claim,  as  follows  :  u  That  previous 
to  Nadeau's  enlistment  for  the  war,  to  wit:  on  the  16th  day  of  Sep- 
tember, 1776,  Congress  passed  a  resolution  giving  $20  bounty  money, 
and  granting  bounty  land  of  100  acres  to  those  who  enlisted  for  the 
war  and  continued  therein  to  the  close  of  the  war,  or  until  discharged 
by  Congress.  And  your  petitioner  further  shows  that  he  made  ap- 
plication to  the  Commissioner  of  Pensions  for  said  land,  which  appli- 
cation has  been  denied/' 

The  allegation  of  the  petitioner,  therefore,  is,  that  the  Commissioner 
of  Pensions  incorrectly  decided  that  Basil  Nadeau  was  not  legally  en- 
titled to  bounty  land. 

By  the  resolution  of  September  16,  1776,  Congress  made  provision 
for  a  bounty  of  $20  "  to  each  non-commissioned  officer  and  private 
soldier  who  should  enlist  to  serve  for  the  present  war,  unless  sooner 
discharged  by  Congress." 

"To  the  officers  and  soldiers  who  shall  so  engage  in  the  service  and 
continue  therein  to  the  close  of  the  war,  or  until  discharged  by  Con- 
gress," certain  quantities  of  land,  the  share  of  each  non-commissioned 
officer  and  soldier  being  100  acres. 

In  order,  therefore,  to  entitle  the  soldier  to  the  bounty  land  he  must 
have  enlisted  to  serve  during  the  war,  and  have  continued -in  the  ser- 
vice to  the  close  of  the  war,  or  until  discharged  by  Congress. 

In  the  petition  to  Congress,  which,  with  the  accompanying  papers, 
has  been  laid  before  us,  it  is  stated  that  Basil  Nadeau  "on  the  16th 
day  of  November,  1776,  enlisted  for  the  war  in  General  Moses  Hazen's 
regiment,  (Congress  regiment,)  and  continued  to  serve  to  the  close  of 
the  war,  the  term  of  his  enlistment,  although  the  word  omitted  ap- 
pears at  the  end  of  his  name  on  the  rolls,  in  March,  1781." 


FRANCIS  NADEAU. 


It  appears  that  on  the  26th  day  of  June,  1819,  the  said  Basil  Na- 
deau  was  inscribed  on  the  pension  list  at  the  rate  of  eight  dollars  per 
month.  This  was  under  the  pension  act  of  March  18,  1818.  It  does 
not,  however,  follow  from  this  that  he  served  to  the  end  of  the  war, 
because  a  service  of  nine  months  entitled  him  to  a  pension. 

The  evidence  accompanying  the  petition  to  Congress  is  as  follows  : 
Basil  Nadeau  testifies  that  in  the  year  1776  he  enlisted  for  the  war, 
and  served  in  Captain  Ollive's  company  of  Canadian  volunteers,  in 
Hazen's  regiment,  and  continued  in  the  service  until  the  close  of  the 
war,  when  he  was  regularly  discharged.  There  is  also  the  testimony 
of  Francis  Nadeau,  the  son  of  Basil  Nadeau,  who  testifies  that  he  be- 
lieves that  his  father  did  enlist  and  serve  as  aforesaid.  Alexander 
Ferriole  testifies  that  he  knows  that  Basil  Nadeau  did  perform  the 
military  services  stated  in  his  affidavit.  This  is  all  the  evidence  going 
to  show  that  Basil  Nadeau  served  to  the  end  of  the  war. 

In  the  letter  of  Mr.  Waldo,  Commissioner  of  Pensions,  dated  the 
15th  of  April,  1853,  and  addressed  to  C.  K.  Averill,  esq.,  there  is  the 
following  statement : 

"Upon  a  thorough  investigation  of  the  rolls  and  records  of  this 
office,  it  is  found  that  Basil  Nadeau  enlisted  November  16,  1776,  and 
that  his  name  was  omitted  on  the  rolls  in  March,  1781,  and  was  never 
after  restored  to  the  rolls,  thereby  furnishing  the  most  conclusive 
evidence  that  he  left  the  service  at  the  last  mentioned  date,  and  never 
again  returned  to  his  regiment ;  which  fact  is  fully  confirmed  by  the 
books  of  final  settlement  certificates,  which  show  that  the  last  certifi- 
cate for  pay  issued  to  Nadeau  was  for  $13  30,  dated  January  1,  1782r 
that  sum  being  his  monthly  pay  for  January  and  February,  1781,  his 
name  being  dropped  from  the  rolls  in  March,  1781. 

u  In  one  of  your  statements  you  say  that  certificates  were  issued  to 
him  as  late  as  November,  1783.  A  careful  re-examination  of  the 
books  shows  that  no  certificates  for  pay  whatever  issued  in  his  name 
at  any  period  of  the  year  1783. 

"  The  term  i  omitted,'  when  it  appears  on  the  rolls  opposite  to  the 
name  of  a  soldier,  has  no  other  signification  than  that  the  soldier  left 
the  service  in  consequence  of  sickness  or  disability  of  some  kind 
without  receiving  a  'discharge,'  and  not  afterwards  returning  to  the 
service  it  became  useless  to  continue  his  name  on  the  rolls,  and  he  is 
noted  thereon  'omitted.' 

"  The  within  patent  for  200  acres  of  land,  granted  by  the  State  of 
New  York  in  April,  1830,  to  Basil  Nadeau,  under  a  special  act  of  the 
legislature  of  that  State,  passed  25th  April,  1829,  recognizes  Nadeau 
in  no  other  character  than  that  of  a  '  Canadian  refugee,'  and  this  grant 
of  200  acres  of  land  was  made  thirty  years  after  the  grants  by  New 
York  were  generally  made  to  those  reported  to  that  State  by  the 
officers  appointed  for  that  purpose  under  the  14th  section  of  the  act 
of  the  legislature  of  said  State,  passed  May  11,  1784.  This  patent, 
therefore,  furnishes  no  evidence  whatever  of  Basil  Nadeau's  services 
to  the  close  of  the  war  in  1783." 

Unless,  perhaps,  in  some  extraordinary  cases,  which  this  does  not 
appear  to  be,  the  evidence  furnished  by  the  rolls  must  be  considered 
as  conclusive,  although,  as  it  appears  by  the  letter  of  General  Dear- 


6 


FRANCIS  NADEAU. 


born,  of  the  27th  of  July,  1803,  the  returns  of  the  New  York  line 
subsequent  to  the  year  1781  were  destroyed  by  fire  in  November,  1802. 
The  rolls  for  the  year  1781  show  that  the  name  of  Basil  Nadeau  was 
"omitted,"  and  Mr.  Waldo's  letter  shows  the  meaning  to  be  attached 
to  the  word  "omitted."  We  do  not  mean  to  say  that  he  might  not 
have  served  to  the  close  of  the  war,  but  merely  that  the  evidence  does 
not  authorize  us  to  come  to  that  conclusion.  We  have  merely,  on 
the  one  hand,  the  evidence  of  Basil  Nadeau  that  he  served  to  the  end 
of  the  war,  and  the  very  indefinite  statement  of  Ferriole  that  he  knew 
that  he  did  so  serve;  and,  on  the  other  hand,  the  evidence  furnished 
by  the  rolls  that  his  name  was  omitted.  There  is,  also,  the  fact 
stated  by  Mr.  Waldo  that  no  pay  certificate  in  his  name  was  issued  in 
1783,  the  last  certificate  appearing  on  the  books  to  have  been  issued 
on  the  1st  of  January,  1782,  for  $13  30  for  his  monthly  pay  for 
January  and  February,  1781,  his  name  being  dropped  from  the  rolls 
in  March,  1781. 

Our  opinion,  therefore,  is,  that  the  claimant  has  no  cause  of  action* 


35th  Congress,  )  SENATE.  (  Mis.  Doc. 

1st  Session.     \  I  No- 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


December  10,  1857. — Received. 
December  18  1857. — Referred  to  the  Committee  on  Claims. 


The  Court  of  Claims  submitted  the  following 

REPORT. 

To  the  honorable  the  Senate  and  House  of  Representatives  of  the  United 
States  in  Congress  assembled : 

The  Court  of  Claims  respectfully  presents  the  following  documents 
as  the  report  in  the  case  of 

ELLEN  MARTIN  vs.  THE  UNITED  STATES. 

1.  The  petition  of  the  claimant. 

2.  Certificate  of  heirship  of  claimant  transmitted  to  House  of  Rep- 
resentatives. 

3.  Opinion  of  the  Court  adverse  to  the  claim. 

By  order  of  the  Court  of  Claims. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
v        -,  seal  of  said  Court,  at  Washington,  this  seventh  day  of  Decem- 

[SEAL.  J  A  1857> 

SAM'L  H.  HUNTINGTON,  ^ 

Chief  Clerk  Court  of  Claims. 


To  the  honorable  Judges  of  the  Court  of  Claims  of  the  United  States : 

The  petition  of  Ellen  Martin,  wife  of  John  Levake,  of  La  Colo,  in 
the  county  of  Huntingdon,  in  Canada  East,  one  of  the  grandchildren 
and  heirs-at-law  of  Francis  Martin,  deceased,  begs  leave  respectfully 


2 


ELLEN  MARTIN. 


to  represent  unto  this  honorable  Court,  that  she  is  interested,  as  one 
of  the  grandchildren  of  the  said  Francis  Martin,  in  a  claim  which  the 
said  Francis  Martin  had  against  the  United  States  for  services  in  the 
revolutionary  war ;  that  her  interest  in  said  claim  arises  from  the 
consideration  that  she  is  one  of  the  grandchildren  and  heirs-at-law, 
with  others  of  kin,  of  the  said  Francis  Martin,  who  died  intestate  on 
or  about  the  day  of  December,  A.  D.  1780,  and  in  considera- 
tion of  certain  resolves  of  Congress  hereinafter  named. 

And  your  petitioner  further  represents  unto  this  honorable  Court, 
that  the  said  Francis  Martin  was  commissioned  by  Congress  a  lieuten- 
ant in  the  continental  service  in  the  revolutionary  war,  and  served  as 
such  officer  until  his  death  as  aforesaid.  That  by  a  resolution  of  Con- 
gress of  the  24th  day  of  August,  1780,  it  was  provided  that  the  reso- 
lution of  the  15th  of  May,  1778,  granting  half  pay  for  seven  years  to 
the  officers  of  the  army  who  should  continue  in  service  to  the  end  of 
the  war,  be  extended  to  the  widows  of  those  officers  who  have  died,  or 
should  thereafter  die  in  the  service,  to  commence  from  the  time  of 
such  officer's  death  and  continue  for  the  term  of  seven  years  ;  or  if 
there  should  be  no  widow,  or  in  case  of  her  death  or  intermarriage,  the 
said  half  pay  should  be  given  to  the  orphan  children  of  the  officer  so 
dying  as  aforesaid,  if  he  should  have  left  any,  &c.  And  your  peti- 
tioner avers  that  the  said  Francis  Martin  died  when  in  the  service 
before  the  end  of  the  war,  and  at  the  time  above  stated,  leaving  a  wife 
and  children  surviving  him,  but  who  are  now  dead,  leaving  issue. 

And  your  petitioner  further  shows  to  this  Court,  that  the  seven 
years'  half  pay  provided  for  in  the  foregoing  resolution  has  never  been 
paid,  but  remains  as  a  debt  or  claim  due  to  the  estate  or  representa- 
tives of  the  said  officer  from  the  United  States. 

And  your  petitioner  further  states  and  avers  that  she  presented  her 
claim  to  Congress  in  1854  for  the  commutation  pay,  which  was  re- 
ferred to  the  Senate  Committee  on  Revolutionary  Claims,  who  reported 
a  bill,  number  of  report  82,  bill  186,  33d  Congress,  and  recommitted 
January  5,  1855.  All  which  proceedings  she  asks  to  be  filed  in  this 
Court  as  a  part  of  the  case. 

Your  petitioner,  therefore,  prays  that  this  honorable  Court  will 
examine  into  the  justice  and  equity  of  the  said  claim,  and  report  a  bill 
to  Congress  providing  for  the  payment  thereof,  together  with  the  in- 
terest thereon,  unto  the  heirs  or  legal  representatives  of  the  said 
officer  ;  or  such  other  order  or  bill  as  to  your  honors  shall  seem  fit  and 
proper  to  report  in  the  premises. 

And  your  petitioner,  as  in  duty  bound,  will  ever  pray. 

C.  K.  AVER1LL, 

Attorney  for  Claimant. 

Dated  February  25,  A.  D.  1856. 

State  of  New  York,  1 
County  of  Clinton,  \ 

Calvin  K.  Averill,  of  Rouse's  Point,  in  the  county  of  Clinton,  in 
he  State  of  New  York,  being  duly  sworn,  doth  depose  and  say  that 


ELLEN  MARTIN.  6 

the  petition,  above  by  him  subscribed,  contains  the  truth,  according  to 
the  best  of  his  information  and  belief. 

C.  K.  AVERILL. 

Sworn  and  subscribed  before  me,  this  twenty-fifth  day  of  February, 
A.  D.  1856. 

M.  VAN  DERVORT,  J.  P. 

Court  of  Claims,  December  13,  1856. 

Amended  petition  sworn  to  before  me. 

SAM'L  H.  HUNTINGTON, 

Chief  Clerk  Court  of  Claims. 


Ellen  Martin  vs.  The  United  States. 

Chief  Justice  Gilchrist  delivered  the  opinion  of  the  Court. 

The  petitioner,  who  is  now  the  wife  of  John  Levake,  represents 
that  she  is  one  of  the  grandchildren  of  Francis  Martin,  who  died 
intestate  in  the  month  of  December,  1780  ;  that  the  said  Martin  was 
a  lieutenant  in  the  war  of  the  revolution,  and  served  in  that  capacity 
until  his  death  ;  that  by  a  resolution  of  Congress  of  August  24,  1780, 
it  was  provided  that  the  resolution  of  May  15,  1778,  granting  half 
pay  for  seven  years  to  the  officers  of  the  army  who  should  continue 
in  service  to  the  end  of  the  war,  be  extended  to  the  widows  ot  those 
officers  who  have  died,  or  should  thereafter  die  in  the  service,  to 
commence  from  the  time  of  such  officer's  death  and  continue  for  the 
term  of  seven  years  ;  or,  if  there  should  be  no  widow,  or  in  case  of 
her  death  or  intermarriage,  the  said  half  pay  should  be  given  to  the 
orphan  children  of  the  officer  so  dying  as  aforesaid,  if  he  should  have 
left  any,  &c. 

The  claimant  avers  that  Martin  died  in  the  service  before  the  end 
of  the  war,  and  at  the  time  above  stated,  leaving  a  wife  and  children 
surviving,  bat  who  are  now  dead,  leaving  issue.  She  also  alleges 
that  the  seven  years'  half  pay  has  never  been  paid,  but  remains  due 
from  the  United  States. 

The  resolution  of  May  15,  1778,  gives  to  all  officers  who  should 
continue  in  service  during  the  war  one-half  of  their  then  present  pay 
for  the  term  of  seven  years  after  the  conclusion  of  the  war.  The 
resolution  of  August  24,  1780,  extends  the  benefit  of  the  resolution 
of  May  15,  1778,  to  the  widows  of  those  officers  who  had  died,  or 
should  thereafter  die  in  the  service,  the  half  pay  to  commence  from 
the  time  of  the  officer's  death,  and  to  continue  for  seven  years  ;  or  if 
there  were  no  widow,  or  in  cas  of  her  death  or  intermarriage,  the 
half  pay  should  be  given  to  the  orphan  children  of  the  officer,  if  he 
should  have  left  any. 

Assuming  for  the  present,  for  the  sake  of  the  argument,  that  under 
this  last  resolution  grandchildren  may  be  entitled  to  the  half  pay, 
it  is  necessary  to  examine  the  question  whether  the  claim  is  barred 
by  the  resolutions  and  statute  of  limitation. 


4 


ELLEN  MARTIN. 


It  is  very  clear  that  the  claim,  even  if  it  were  presented  hy  the 
proper  person,  is  barred.  It  is  not  alleged  or  proved  that  the  claim 
was  ever  presented  at  the  treasury  prior  to  the  1st  day  of  May,  1794. 
We  have  recently  investigated  this  point  at  so  much  length  in  the 
cases  of  Chamberlain  vs.  The  United  States  and  Marnay  vs.  The 
United  States,  that  it  is  unnecessary  now  to  re-examine  it.  It  is 
sufficient  to  say  that  the  decisions  in  those  cases  must  govern  the 
present,  and  that  the  claim,  by  whomsoever  presented,  is  now  barred, 
and  that  there  is  no  cause  of  action  arising  out  of  the  services  of 
Francis  Martin  now  existing  against  the  United  States. 


35th  Congress,  )  SENATE.  j  Mis.  Doc. 

1st  Session.     f  -    1  No.  190. 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


March  8,  1858. — Referred  to  the  Committee  on  Claims. 


The  Court  of  Claims  submits  the  following 

REPORT. 

To  the  honorable  the  Senate  and  House  of  Representatives  of  the  United 
States  in  Congress  assembled  : 

The  Court  of  Claims  respectfully  presents  the  following  documents 
as  the  report  in  the  case  of 

JACOB  BIGELOW,  ADMINISTRATOR  OF  FRANCIS  CAZEAU, 
vs.  THE  UNITED  STATES. 

1.  The  petition  of  the  claimant. 

2.  Claimant's  brief.  4 

3.  United  States  Solicitor's  briefs. 

4.  Opinion  of  Judges  Blackford  and  Scarburgh,  adverse  to  the 
claim. 

5.  Opinion  of  Judge  Gilchrist,  in  favor  of  the  claim. 

Many  original  papers  in  this  case  have  been  received  from  the 
Treasury  Department.  The  most  important  are  printed  in  the  opinions 
of  the  judges.  The  originals  are,  by  order  of  the  Court,  retained  by 
the  chief  clerk,  to  be  laid  before  the  committees  of  Congress  when 
desired,  and  then,  by  the  requirement  of  the  Secretary  of  the 
Treasury,  to  be  returned  to  the  Treasury  Department,  where  they 
properly  belong. 

By  order  of  the  Court  of  Claims. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
ro_     -,  seal  of  said  Court,  at  Washington,  this  fourth  day  of  March, 

[SEAL.J  A    D>  185g< 

SAM'L  H.  HUNTINGTON, 

Chief  Clerk  Court  of  Claims. 


2 


JACOB  BIGELOW. 


To  the  honorable  the  Judges  of  the  United  States  Court  of  Claims : 

The  petition  of  Jacob  Bigelow  respectfully  represents  :  That  in  the 
year  1844  letters  of  administration  were  granted  to  him  by  the 
orphans'  court  of  the  county  of  Washington,  in  the  District  of  Colum- 
bia, on  the  personal  estate  of  Francis  Cazeau,  late  of  Canada,  which 
still  remain  in  force  and  unrevoked ;  and  that  he  had  previously 
received  from  the  heirs  of  said  Cazeau,  residing  in  Canada,  full  powers 
to  represent  the  claims  of  their  said  ancestor  upon  the  government  of 
the  United  States. 

Your  petitioner  shows,  that  Francis  Cazeau  was  a  merchant,  of  large 
fortune  and  great  influence,  residing  in  Montreal,  at  the  commence- 
ment of  the  American  revolution,  and  warmly  espoused  the  cause  of 
the  revolted  colonies,  rendering  them  essential  services  by  his  labors, 
his  influence,  and  his  wealth,  in  consequence  of  which  his  property 
was  confiscated,  and  he  was  reduced  to  poverty ;  and  that  among  the 
services  rendered  and  the  losses  endured  by  him,  entitling  him  to 
pecuniary  remuneration  from  the  government  of  the  United  States, 
were  the  following  : 

In  the  beginning  of  the  year  1777  Cazeau  entered  into  a  verbal 
agreement  with  General  Arnold  to  furnish  supplies  to  the  American 
army,  which  was  confidently  expected  in  Canada  in  the  spring  of  that 
year ;  for  which  supplies  he  was  to  receive  the  customary  market 
price,  together  with  all  expenses,  and  the  usual  and  reasonable  com- 
mission. He  accordingly  purchased  eight  thousand  bushels  of  wheat, 
at  a  cost  of  $8,000,  and  had  them  ground  into  flour  and  packed  into 
barrels,  ready  for  the  American  troops  ;  but,  in  consequence  of  the 
failure  of  the  American  army  to  invade  Canada,  as  expected,  and 
Cazeau' s  arrest  and  imprisonment  for  favoring  the  cause  of  the 
Americans,  this  flour  was  ruined,  and  became  a  total  loss  to  him,  with 
his  expenses  and  commissions,  amounting  to  $2,633  30. 

In  the  spring  of  the  same  year,  in  pursuance  of  the  same  agreement, 
Cazeau  despatched  three  batteaux,  laden  with  wines,  spirits,  cheese, 
hats,  and  other  articles,  suitable  for  the  American  army,  costing 
$4,000,  to  Ticonderoga,  to  be  delivered  to  any  American  officer  com- 
manding on  Lake  Champlain,  or  the  American  general  commanding  at 
Ticonderoga.  The  American  forces  had  vacated  that  post,  but,  whilst 
the  boats  were  there  awaiting  further  orders  from  Cazeau,  made  a 
descent  upon  the  place,  and  captured  and  plundered  the  boats  as 
enemy's  property,  thus  occasioning  a  loss  to  Cazeau  of  the  cost  of  these 
supplies,  as  well  as  of  the  expense  of  procuring  and  forwarding  them, 
and  the  commission  stipulated,  amounting,  together,  to  $1,404  43. 

About  the  same  period  Cazeau  had  incurred  sundry  expenses, 
amounting  to  $276  64,  for  procuring  intelligence  for  the  American 
army. 

And  your  petitioner  further  shows,-  that  the  claims  of  Cazeau,  on 
these  and  other  grounds,  having  been  presented  to  the  American  Con- 
gress, resolutions  were  passed  by  Congress,  on  the  18th  of  March, 
1784,  directing  a  settlement  of  the  claims,  recognizing  the  right  to 
remuneration  for  supplies  furnished  to  the  American  troops,  allowing 


JACOB  BIGELOW. 


3 


interest,  at  the  rate  of  6  per  cent,  per  annum,  from  the  year  1777,  and 
directing  Cazeau' s  oath  to  be  received  in  support  of  such  other 
evidence  as  the  circumstances  of  the  case  would  admit  of ;  that,  by  a 
resolution  of  June  7,  1785,  the  commissioners  for  settling  the  accounts 
of  the  State  of  New  York  with  the  United  States  were  directed  to 
examine  the  accounts  of  Canadian  refugees  who  had  furnished  sup- 
plies to  the  American  army ;  that  in  July,  1785,  the  commissioner,  Mr. 
Barber,  reported  in  favor  of  Cazeau' s  claim  for  the  supplies,  commissions, 
and  expenses,  and  his  advances  to  procure  intelligence,  although  he 
expressed  the  opinion  that  a  special  act  of  Congress  was  necessary 
to  sanction  payment  for  the  commissions  and  expenses. 

Your  petitioner  further  shows,  that  in  January,  1817,  after  a  full 
investigation,  a  committee  of  the  Senate  made  a  report  in  favor  of 
the  claim,  upon  the  following  statement  thereof : 

The  United  States 

In  account  icith  Fran.  Cazeau,  Dr. 


March,  1777.    For  8,000  bushels  of  wheat   $8,000  00 

Ma}-,  1777.    For  3  boats,  with  brandy,  &c   4,000  00 

1778,  1779,  1780.    For  advances,  to  gain  intelligence   276  64 


12,276  64 

Interest  on  $12,276  64,  from  1777,  say  forty  years   29,463  60 

Expenses  and  commission  on  wheat   2,633  30 

Expenses  and  commission  on  brandy,  &c   1,404  43 


45,777  97 

February,  1783.    Cr.  cash  on  account   $1,000  00 

Interest,  say  thirty-four  vears    2,040  00 

  3,040  00 


42,737  97 


At  the  same  session  a  bill  was  passed  for  the  payment  of  the  said 
sum  of  $42,737  97  to  the  legal  representatives  of  Francis  Cazeau. 

Your  petitioner  further  shows,  that  the  heirs  of  Mr.  Cazeau  have 
never  received  any  of  the  benefit  intended  for  them  by  this  law,  and 
he  will  proceed  to  state  the  causes  of  this  unexpected  result. 

Mr.  Cazeau,  despairing  of  receiving  justice  at  the  hands  of  the 
United  States,  went  to  France,  and  in  the  year  1807,  in  his  sevent}^- 
eighth  year,  when  broken  down  by  grief  and  infirmity,  was  induced, 
by  the  practice  of  gross  imposition  upon  him,  to  execute  a  power  of 
attorney  to  one  Corbeaux,  to  prosecute  this  claim  for  him,  and  an 
assignment  to  Corbeaux  of  three-fourths  of  the  claim,  for  the  nominal 
consideration  of  $200, 000,  not  one  cent  of  which,  however,  was  ever 
paid  to  him.  At  the  same  time  a  collateral  agreement  was  executed 
between  the  parties,  limiting  the  time  for  Corbeaux' s  recovery  of  the 
claim  to  two  sessions  of  Congress,  and  reserving  to  Cazeau  the  right 
of  revocation.    In  less  than  five  months  after  its  execution,  in  April, 


4 


JACOB  BIGELOW. 


1808,  Cazeau  revoked  the  power  of  attorney,  and  had  criminal  pro- 
ceedings instituted  against  Corbeaux  ;  in  consequence  of  which,  the 
original  power  and  assignment  were  surrendered  to  Cazeau,  and 
annulled,  and  have  ever  since  been  in  possession  of  himself  and  his 
heirs,  until  filed  with  their  papers  before  Congress.  Cazeau  subse- 
quently notified  the  government  of  the  United  States  that  he  still 
held  the  claim.  Corbeaux,  however,  in  the  year  1808,  procured  from 
the  American  consulate,  where  they  had  been  recorded,  a  copy  of  the 
assignment  and  power,  which  any  one  might  have  procured  on  pay- 
ment of  the  fees,  and  remaining  quiet  until  the  death  of  Cazeau,  in 
1815,  proceeded  then  to  concoct  a  scheme  for  defrauding  the  heirs. 
He  executed  a  power  of  attorney  to  one  James  Grubb,  in  London, 
who  substituted  for  himself  one  Stewart,  and  the  latter  came  to  this 
country,  and  by  means  of  said  copy,  and  copies  of  original  papers, 
which  he  stated  had  been  burnt  in  the  Treasury  Department,  induced 
Congress  to  pass  the  act  of  1817,  aforesaid,  in  favor  of  the  represent- 
atives of  Cazeau,  and  drew  the  money  thereby  appropriated  from 
the  treasury. 

The  original  papers  referred  to  by  him,  including  the  assignment  to 
Corbeaux,  had  in  fact  been  sent  to  General  Mason,  of  Georgetown, 
with  a  power  of  attorney,  in  1809.  Whilst  he  awaited  additional  docu- 
ments, the  war  with  Great  Britain  broke  out,  and  it  was  deemed  in- 
expedient and  useless  to  press  the  claim,  and  Cazeau  dying  soon 
after,  General  Mason  considered  his  power  revoked,  and  two  years 
afterwards  delivered  the  papers  to  Cazeau' s  heirs,  by  whom  they 
have  been  presented  to  Congress. 

Your  petitioner  shows,  as  the  strongest  proof  of  Stewart's  fraud, 
that  no  part  of  the  money  received  by  him  has  ever  been  paid  to  the 
heirs  of  Cazeau. 

Your  petitioner  further  shows,  that  the  payment  to  Stewart  was 
made  upon  a  mere  copy  of  a  copy,  purporting  on  its  face  to  he  a  copy, 
without,  as  far  as  appears,  any  inquiry  as  to  the  original,  and  certainly 
without  any  evidence,  genuine  or  spurious,  to  account  for  its  non-pro- 
duction, without  any  notice  to  the  heirs  of  Cazeau,  and  without  any 
default  on  their  part,  after  the  assignment  to  Corbeaux  had  been  an- 
nulled and  surrendered,  and  the  power  of  attorney  had  been  revoked 
in  fact  by  Cazeau  in  his  lifetime,  and  in  law  by  his  death,  and  the 
fact  of  his  death  had  been  communicated  to  the  government  by  Stew- 
art himself.  Your  petitioner  shows  that  both  the  fact  of  its  being  a 
copy,  and  the  date  of  the  instrument  presented  by  Stewart,  (its  pre- 
sentation being  ten  years  after  its  date,)  were  sufficient  to  excite  sus- 
picion, and  put  the  officers  of  the  treasury  upon  inquiry  ;  and  he  is 
advised  that  their  payment  of  the  money  was  in  their  own  wrong,  and 
no  discharge  to  the  government,  and  that  he  is  entitled  both  upon  the 
original  merits  of  the  claim,  as  founded  on  a  valid  and  executed  con- 
tract, and  under  the  act  of  Congress  of  March  3,  1817,  adjusting  and 
liquidating  the  claim  to  the  whole  amount  appropriated  by  that  act, 
with  interest,  with  the  exception  to  be  presently  mentioned. 

Your  petitioner  shows  that  shortly  after  the  money  was  paid  to 
Stewart,  one  of  the  heirs  of  Cazeau,  having  accidentally  heard  of  the 


JACOB  BIGELOW. 


5 


passage  of  the  act  of  1817,  came  to  Washington  to  draw  the  money, 
and  thus  discovered  the  fraud  practiced  upon  them  ;  that  ever  since 
said  date  they  and  your  petitioner  have  been  earnestly  seeking  to 
recover  this  and  other  claims  of  Cazeau  from  the  government ;  that 
in  the  year  1836  this  claim  was  referred,  by  a  resolution  of  the  Senate, 
to  Virgil  Maxcy,  then  Solicitor  of  the  Treasury,  and  a  full  and  favor- 
able report  made  upon  it  by  him  ;  that  in  June,  1844,  a  bill  was 
passed  for  the  payment  of  one-fourth  of  the  amount  appropriated  by 
the  act  of  March  3,  1817,  with  interest  from  May,  1818,  amounting 
to  $27,352  32,  which  sum  was  received  by  your  petitioner;  that 
favorable  reports  upon  the  residue  of  the  claim  were  made  in  the 
House  of  Representatives  in  1837,  1846,  and  1848,  to  which  reports, 
as  well  as  that  of  January  30,  1817,  in  the  Senate,  your  petitioner 
refers  for  a  more  full  history  of  the  claim. 

And  your  petitioner  further  shows  that  no  part  of  the  claim  has 
been  assigned  by  him,  or  the  heirs  of  Cazeau,  to  any  other  person, 
but  it  belongs  wholly  to  the  estate  of  Cazeau. 

And  your  petitioner  states  the  claim  now  presented  by  him  as 
follows : 


Amount  appropriated  by  the  act  of  March  3,  1817  $42,737  97 

Interest  from  May,  1818,  to  1844   66,671  31 


109,409  28 

Cr.  then  paid   27,352  32 


82,056  96 

Interest  on  $42,737  97,  from  June  15,  1844,  say  to  June 

15,  1855   28,207  06 


Amount  now  due   110,264  02 

Additional  interest  till  paid  


Respectfully  submitted.  • 

J.  BIGELOW, 

Administrator  on  the  estate  of  the  late  Francois  Cazeau. 

District  op  Columbia,  \ 
County  of  Washington.  ] 

On  this  first  day  of  August,  A.  D.  1855,  before  the  subscriber,  a 
justice  of  the  peace  in  and  for  the  county  aforesaid,  personally 
appears  Jacob  Bigelow,  and  makes  oath,  according  to  law,  that  the 
facts  stated  in  the  foregoing  petition  are  true,  to  the  best  of  his 
knowledge  and  belief. 

THOMAS  DONOHO, 

Justice  of  the  Peace. 
JOHNSON  &  COX, 

Attorneys  for  Petitioner. 


6 


JACOB  BIGELOW. 


UNITED  STATES  COURT  OF  CLAIMS. 
THE  PETITION    OF  JACOB    BIGELOW,  ADMINISTRATOR  OF  FRANCIS  CAZEATJ. 

Brief  of  Claimant. 

The  facts  of  this  case  sufficiently  appear  in  the  petition. 

This  is  in  the  nature  of  a  suit  against  the  United  States,  in  which 
the  petitioner  makes  out  his  case  by  producing  the  act  of  Congress  of 
March  3,  1817,  c.  243,  directing  payment  of  $42,737  97  "to  the  legal 
representatives  of  Francis  Cazeau,  late  merchant  at  Montreal,  or  to  his 
or  their  assignee  or  attorney,  or  other  person  lawfully  entitled  to 
receive  the  same,  and  filing  his  letters  of  administration,  showing  him 
to  be  the  legal  representative  of  Cazeau. " 

The  United  States  defend,  on  the  ground  of  payment  to  one  author- 
ized to  receive,  under  an  assignment  and  power  of  attorney,  executed 
by  Cazeau  in  his  lifetime. 

In  answer  to  this  : 

1st.  It  is  contended  that  such  alleged  instrument,  if  it  existed  in 
force  at  the  time  of  Cazeau' s  death,  became  thereby  inoperative;  so 
that  thereafter  there  was  no  assignee,  or  attorney,  or  other  person, 
lawfully  authorized  to  receive,  under  said  instrument. 

That  the  death  of  the  principal  operates  to  revoke  a  power  of  attor- 
ney, will  not  be  denied. — (Hunt  vs.  Rousmanier,  8  Wheat.,  174.) 

But  it  will  be  said  that  the  assignment  survived  and  coupled  the 
power  with  an  interest,  which  prevented  it  from  expiring. 

To  this  it  is  answered,  that  an  unliquidated  claim  against  the  United 
States  is  not  the  subject  of  an  assignment ;  that  such  assignment  can 
transfer  no  interest,  and  can  only  be  regarded  as  an  authority  to  re- 
ceive the  money — a  naked  authority,  which  expires  upon  the  death 
of  the  principal. — (See  United  States  vs.  Robeson,  9  Pet.,  319.) 

2d.  It  is  denied  that  any  valid  assignment  or  power  of  attorney 
existed  even  at  the  time  of  Cazeau' s  death,  much  less  at  the  time  of 
the  payment.  The  burden  of  proof  to  show  the  existence  of  such  an 
instrument  is  on  the  United  States.    How  can  they  show  it  ? 

They  offer  in  evidence,  we  suppose,  the  voucher  upon  which  the 
payment  was  made,  and  which  is  certified  by  the  American  consul  at 
Paris,  in  1807,  to  be  a  true  copy  of  a  record  in  his  office. 

We  object,  that  a  copy  is  not  admissable  j  that  the  original  must 
be  produced,  or  its  absence  satisfactorily  accounted  for,  which  cannot 
be  done  by  the  government.  This  is  a  well-settled  rule  of  law. — (1 
Greenl.  on  Ev.,  §  82,  86,  87.) 

Suppose  I  owe  money  to  A  B  and  C  D  presents  to  me  a  copy  of 
a  draft  on  me,  in  his  favor,  from  A  B  upon  which  I  pay  the  money. 
In  a  subsequent  suit  against  me  by  A  B  for  his  debt,  could  I,  under 
the  plea  of  payment,  offer  in  evidence  the  copy  and  the  payment 
upon  it  ?  What  would  be  thought  of  a  bank  paying  upon  a  copy  of 
a  check  by  a  depositor?  And  how  much  more  inadmissible,  as  a 
defence,  would  the  payment  be,  in  the  cases  supposed,  if,  as  in  this, 


JACOB  BIGELOW. 


7 


the  copies  do  not  even  purport  to  be  transcribed  from  the  original, 
but  to  be  copies  of  a  copy  in  the  hands  of  a  third  party,  to  which 
any  one  may  have  access !  And  how  utterly  indefensible  the  act  of 
payment,  when,  in  addition,  the  copies  bear  date  nine  years  before 
presentation ! 

It  is  too  plain  for  argument,  that  payment  in  such  cases  would  be 
made  to  one  not  authorized  to  receive,  and  would  be  no  discharge 
against  the  real  creditor. 

That  the  payment  was  made  in  good  faith,  and  without  suspicion 
of  fraud,  would  obviously  not  better  the  case  ;  for  in  no  instance  can 
a  creditor  be  prejudiced  by  deceptions  practiced  on  his  debtor  by 
third  persons,  without  his  knowledge  or  privity,  and  without  negli- 
gence on  his  part. 

But,  in  fact,  this  would  be  a  case  of  the  grossest  negligence,  and 
legal  notice  of  fraud,  on  the  debtor's  part.  The  very  ground  of  the 
rule  excluding  secondary  evidence  is,  that  the  withholding  of  better 
evidence  raises  a  presumption  of  fraud. — (1  Greenl.  on  Ev.,  §  82,  citing 
Tayloe  vs.  Riggs,  1  Pet.,  591.)  The  production  of  a  copy,  then,  in  this 
case,  without  accounting  for  the  original,  was  itself  legal  evidence  and 
notice  to  the  government  of  fraud.  This,  added  to  the  remote  date 
of  the  instrument,  was  sufficient  to  put  the  government  upon  inquiry 
and  excite  suspicion,  and  to  effect  them  with  the  consequences  of 
neglect. 

>  Additional  evidence  of  gross  negligence  on  the  part  of  the  govern- 
ment is  found  in  the  fact  that,  at  the  time  of  the  payment,  no  legal 
evidence  was  produced  even  to  show  this  copy  to  be  a  true  copy  of 
the  original;  nor  could  that  be  proved  now,  unless  by  the  claimant's 
admissions.  There  is  no  law  either  authorizing  or  directing  such 
instruments  to  be  recorded  in  the  American  consulate  ;  consequently, 
neither  that  record,  nor  copies  from  it,  would  be  any  evidence  in  law 
of  the  contents  of  the  original ;  and  the  consul's  certificate  is  no  more 
than  the  certificate  of  a  private  person,  as  to  the  contents  of  a  book 
in  the  consul's  office. 

But,  failing  to  prove  the  existence  of  the  assignment  and  power 
otherwise,  the  government  offer,  we  suppose,  the  claimant's  admis- 
sions. What  do  they  amount  to,  taken  together,  as  they  must  be  ? 
The  claimant  produces  and  files  a  paper,  purporting  to  be  an  original 
assignment  and  power  from  Cazeau  to  Corbeaux,  with  which  the  copy 
corresponds.  If  the  government  resort  to  this  to  prove  the  fidelity 
of  the  copy,  then  they  admit  the  original  to  be  in  possession  of 
Cazeau' s  representatives,  and  all  the  consequences  which,  as  we  shall 
hereafter  see,  flow  from  that  fact. 

The  Secretary  of  the  Treasury  seems  to  doubt  whether  this  was 
filed  by  Cazeau' s  heirs.  It  is  endorsed,  "  Annulled  and  given  up." 
Stewart  would  hardly  have  filed  it,  or  the  money  been  paid  on  it 
with  this  endorsement ;  otherwise,  the  case  is  still  stronger  for  the 
claimant.  But  we  have  Mr.  Maxcy's  report  and  the  petitioner's 
affidavit  settling  the  matter. 

The  Secretary  also  speaks  of  it  as  signed  in  duplicate.  This  is  not 
the  fact.    There  is  no  evidence  of  it. 


8 


JACOB  BIGELOW. 


The  admission  by  the  claimant  of  the  original  existence  of  an  assign- 
ment, in  fact,  is  qualified  by  a  denial  of  its  validity,  its  legal  existence, 
at  any  time — still  more  of  such  legal  existence  at  the  time  of  Cazeau's 
death,  or  of  the  payment  made  by  the  United  States.  The  whole 
admission  must  be  taken  together — (1  GreenL,  §  201) — and,  so  taken, 
it  is  not  an  admission  of  that  which  the  government  must  prove,  viz  : 
the  legal  existence  of  the  assignment  at  the  time  of  payment. 

It  may  be  true  that  the  Court  may  consider  all  parts  of  the  admis- 
sion ;  may  believe  part  and  disbelieve  part ;  may  believe  the  admis- 
sion and  disbelieve  the  denials.  If  so,  the  United  States  have  pro- 
duced some  admissible  evidence,  and  the  question  will  be  as  to  its 
weight. 

It  was  not  necessary  to  make  any  admission.  The  heirs  of  Cazeau 
might  have  denied  the  existence  of  any  assignment,  and  the  govern- 
ment never  could  have  proved  it.  The  candor  of  the  admission  made 
gives  credibility  to  the  denial  of  the  validity  of  the  assignment,  and 
the  assertion  of  its  annulment  and  surrender.  If  it  existed  in  force, 
Stewart  ought  to  have  had  it,  or  to  have  proved  its  existence  and 
accounted  for  its  non-production.  He  ought  to  have  shown  some 
reason  why  Corbeaux' s  claims  were  not  presented  in  Cazeau's  lifetime, 
or  for  nine  years  after  the  date  of  the  alleged  assignment.  His  failure 
to  do  all  this  irresistibly  fortifies  the  claimant' s  denials,  a,nd  gives  to 
his  admission  almost  the  force  of  proof  in  his  favor. 

Nor  do  the  facts  make  out  a  case  of  neglect  on  Cazeau's  part,  ena- 
bling Corbeaux  to  practice  this  deception  upon  the  government.  He 
did  nothing  to  put  it  in  Corbeaux' s  power  to  mislead.  He  did  not 
give  the  copy  or  know  of  its  being  given,  nor  could  he  have  prevented 
it.  He  was  not  bound  to  anticipate  that  Corbeaux  would  attempt  so 
bold  a  fraud,  still  less  that  the  government  Avould  be  imposed  on  by 
so  shallow  a  device,  and,  consequently,  was  not  bound  to  forewarn 
them  against  it. 

It  may  be  confidently  asserted,  then,  that  the  government  utterly 
fail  to  sustain  their  defence  of  payment ;  that  they  do  not  even  pro- 
duce a  particle  of  competent  much  less  sufficient  evidence,  excepting, 
perhaps,  a  supposed  admission,  which  has  no  force  at  all. 

But  the  claimant  produces  positive  evidence  to  disprove  the  defence 
of  the  government. 

First,  he  produces  the  original  instrument  of  assignment,  the  iden- 
tity of  which  has  never  been  questioned.  Prima  facie,  the  claimant's 
possession  of  it  is  lawful.  It  is  presumptive  evidence,  therefore,  that 
Corbeaux  was  not  entitled  to  it,  and,  consequently,  that  it  was  either 
never  delivered,  which  is  essential  to  give  it  force,  or  that  it  was  after- 
wards annulled  and  surrendered. — (1  Greenl.  on  Ev.,  §  34,  38.) 

We  have,  then,  the  presumption  of  fraud,  the  presumption  against 
the  existence  of  a  valid  original,  raised  by  the  presentation  of  a  copy 
only  by  Stewart,  nine  years  after  its  date,  without  accounting  for  the 
original,  fortified  by  the  presumption  of  concealment  and  surrender, 
raised  by  the  claimant's  possession  of  the  original.  This  makes  assu- 
rance doubly  sure. 

It  has  been  objected  that  we  ought  to  show  a  judicial  cancellation 


JACOB  BIGELOW. 


9 


of  the  instrument ;  in  reference  to  which,  it  suffices  to  challenge  the 
production  of  a  single  authority  or  principle  of  law  to  countenance 
such  a  position.  What  more  natural,  usual,  or  legal  method  of  an- 
nulling a  contract,  than  to  surrender  it  to  the  party  bound  by  it  ? 
What  would  be  thought  of  Cazeau,  with  the  original  in  his  possession, 
and  no  legal  evidence  of  its  existence  in  anybody  else's  hands,  filing 
a  bill  to  set  it  aside,  or  to  set  aside  a  copy  of  it  in  somebody's  pos- 
session? 

Cazeau  did  proceed  against  Corbeaux  criminally ;  but,  as  appears 
from  the  record  of  that  proceeding  on  file,  there  could  be  no  order 
for  the  cancellation  of  the  instrument  in  a  criminal  proceeding ;  but 
it  was  probably  surrendered  in  consequence  of  that  proceeding. 

Next,  we  have  the  fact  that  Cazeau  did  notify  the  government, 
immediately  after  the  date  of  the  alleged  assignment,  that  he  still  held 
the  claim. — (See  Report  in  House  Doc.  No.  355,  28th  Cong.,  first 
session.) 

In  the  next  place  we  have  the  facts  set  forth  in  the  report  upon 
this  claim,  of  Virgil  Maxcy,  Solicitor  of  the  Treasury  in  1836,  (see 
House  Doc.  270,  30th  Cong.,  first  session,)  and  the  proofs  referred  to 
in  said  report,  viz :  That  no  part  of  the  consideration  stipulated  in 
the  assignment  was  paid  to  Cazeau ;  that,  by  a  collateral,  contempo- 
raneous agreement,  the  power  of  attorney  was  to  last  only  during  two 
sessions  of  Congress ;  that  fraud  and  imposition  were  practiced  on 
Cazeau ;  that,  in  less  than  five  months  after  its  execution,  he  revoked 
the  power  of  attorney  and  instituted  criminal  proceedings  against 
Corbeaux,  (in  consequence  of  which,  doubtless,  the  instrument  was 
surrendered ;)  that,  as  early  as  1809,  Cazeau  sent  all  his  original 
papers,  with  a  power  of  attorney,  to  General  Mason;  that  Cazeau' s 
heirs  never  received  any  of  the  money  ;  and,  finally,  the  falsehoods  of 
Stewart's  statements  to  Congress — all  going  to  establish  conclusively 
the  fraud  of  Stewart  and  Corbeaux,  and  to  confirm  those  evidences 
of  it  which  ought  to  have  prevented  the  payment  to  Stewart. 

As  to  the  effect  of  payment  to  the  wrong  person. — (See  Opinions 
Att.  Gen.,  Roger's  Case,  v.  5,  p.  183,  and  Smith's  Case,  v.  4,  p.  298  ; 
Tiernan  vs.  Rescaniere's  adm'rs,  10  Gill  and  J.,  225;  Chapman  vs. 
Williams,  7  H.  and  J.,  157.) 

As  to  interest : 

The  act  creating  the  Court  of  Claims  assumes  that  individuals  have 
claims  of  right  against  the  United  States.  There  must  be,  then,  some 
rule  of  right,  binding  the  government.  It  would  seem  to  be  the  same 
that  regulates  the  dealings  of  individuals ;  for,  after  all,  a  contract 
with  the  government  is  but  a  contract  with  individuals.  The  highest 
evidence  of  what  is  right  between  individuals  is  the  general  law  of 
the  land.  By  the  general  law  of  this  country,  every  creditor  is  enti- 
tled to  interest  from  the  day  when  his  principal  debt  is  payable,  if  it 
be  a  liquidated  demand. — (1  Hare  &  Wallace's  American  leading 
Cases,  pp.  341-351.) 

It  is  considered  due  from  States. — (Respub.  vs.  Mitchell,  2  Dall., 
101 ;  Milne  vs.  Rempub.,  3  Yeates,  102  ;  Adams  vs.  Beach,  6  Hill's  N. 


10 


JACOB  BIGELOW. 


Y.  Rep.,  272  ;  and  from  the  United  States,  U.  S.  vs.  Cogswell,  3  Sum- 
ner, 204  ;  Thorndike  vs.  United  States,  2  Mason,  1.) 

Usage  may  be  resorted  to,  to  construe  an  express  or  implied  con- 
tract, but  not  to  ascertain  rights  growing  out  of  default  of  perform- 
ance. The  contract  does  not  contemplate  any  default,  and  is  not 
therefore  made  with  reference  to  any  usage  determining  the  conse- 
quences of  default. 

And  an  usage  which  is  binding  must  be  uniform,  compulsory  on  all, 
and  reasonable. — (2  Greenl.  Ev.,  §250,  251.)  The  usage  alleged  in 
this  case  would  be  one-sided,  arbitrary,  and  unreasonable,  and  is  not 
uniform. 

But,  in  fact,  it  is  not  the  usage  of  the  government  to  pay  no  interest 
on  claims.  Out  of  1,808  claims  allowed  between  the  revolution  and 
April  11,  1836,  it  appears  1,754  were  paid  with  interest,  and  only 
54  without ;  and  of  the  latter,  19  passed  the  House  of  Representa- 
tives with  interest,  and  many  have  since  been  paid  with  interest. — 
(See  resolutions,  laws,  <fcc,  relating  to  half-pay,  &c,  published  in 
pursuance  of  a  resolution  of  the  House  of  Reps,  of  April  11,  1836.) 

In  this  case  there  is  a  clear  right  to  interest  on  additional  grounds. 

The  resolutions  of  Congress  of  March  18,  1784,  in  relation  to  it, 
direct  interest  to  be  paid. 

It  is  one  of  those  cases  in  which  interest  is  allowable,  according  to 
the  Solicitor's  classification  filed  in  another  case,  and  is  there  men- 
tioned by  name.  Congress  admitted  the  right  in  paying  one-fourth 
in  1844,  with  interest. 

JOHNSON  &  COX,  Attorneys. 


IN  THE  COURT  OF  CLAIMS.  — No.  167. 

On  the  petition  of  Jacob  Bigelow,  administrator  of  Francis  Cazeau, 

deceased. 

Brief  of  the  Solicitor  of  the  United  States. 

This  is  a  claim  now  for  $110,264  02,  with  interest.  It  has  been 
once  paid  in  full,  and  a  second  time  in  part.  It  is  founded  on  the  act 
of  1817,  vol.  6,  p.  191,  appropriating  $42,737  93  to  the  legal  repre- 
sentatives of  Francis  Cazeau,  late  merchant  at  Montreal,  or  to  his  or 
their  assignee  or  attorney,  or  other  person  lawfully  entitled  to  receive 
the  same  ;  and  the  question  made  by  the  claimants  is,  whether  three- 
fourths  part  of  this  money  which  was  paid  to  the  attorney  in  fact  of 
one  Francis  Corbeaux,  to  whom  so  much  of  it  had  been  assigned,  was 
paid  to  the  person  lawfully  entitled  to  receive  the  same. 

A  further  question  will  be  made  by  me  on  the  validity  of  the  act 
of  1817,  which  opens  the  case  on  the 

Merits  of  the  original  claim. 

The  claim,  as  stated  in  the  petition,  and  as  presented  in  a  memorial 
in  1783,  was  for  three  items  :  1st.  Flour  lost  by  the  failure  of  General 


JACOB  BIGELOW. 


11 


Arnold  to  invade  Canada  in  1777.  2d.  For  three  boats  and  freight 
captured  on  Lake  Champlain,  by  the  Americans,  in  the  same  year. 
And  3d.  For  cash  advanced  during  the  years  1778-  79  and  1780,  to 
procure  intelligence  for  the  American  generals. 

1.  It  was  alleged  by  Cazeau  that  he  had  bought  the  wheat  and 
made  the  flour  under  a  verbal  contract  with  Arnold  ;  and  that,  by  the 
terms  of  the  contract,  it  was  agreed  that  the  flour  should  be  at  the 
risk  of  the  government. 

2.  These  boats  had  been  loaded  with  brandy,  wines,  &c,  intended 
for  the  Americans,  and,  it  is  alleged,  were  proceeding  directly  to 
them  when  they  were  captured  and  made  prize.' 

The  consideration  of  the  particular  evidence  on  which  these  claims 
were  presented  in  1836  is  preceded,  in  Mr.  Maxcy' s  report,  with  con- 
siderations of  some  testimony  going  to  show  that  Cazeau  was  a 
French  Canadian  of  wealth  and  influence,  who,  at  the  breaking  out  of 
the  American  revolution,  espoused  the  cause  of  the  revolted  colonies, 
and  maintained  a  correspondence  with  the  public  men  and  military 
officers  of  the  revolution  during  the  struggle,  Avas  finally  suspected 
and  imprisoned  by  the  British,  and  driven  out  of  the  province. 
There  seems  to  have  been  a  favorable  opinion  entertained  of  him  by 
some  persons  of  distinction,  and  a  lively  sympathy  is  manifested  for 
his  misfortunes  in  the  proceedings  of  Congress ;  but  that  he  per- 
formed any  real  service  for  Americans,  much  less  that  he  figured  in 
the  affairs  of  that  day,  as  described  in  the  Senate  report  of  1817,  or 
even  to  the  extent  Maxcy  describes,  there  is  no  reason  for  believing. 
His  claims  were  urged  on  the  Continental  Congress  without  proof,  in 
the  same  style  in  which  Maxcy  advocates  them  in  this  part  of  his 
report,  merely  on  the  character  of  the  individual  ;  and  men  like  Mr. 
Monroe,  who,  as  is  well  known,  was  subject  to  be  imposed  on  in 
money  matters,  whether  his  own  or  those  of  the  government,  were 
willing  to  waive  all  proof  of  the  facts,  and  recognize  the  claims  pre- 
ferred against  the  government  by  Cazeau  without  proof.  Not  so 
Robert  Morris,  the  practical  man  of  business,  whose  position  and 
experience  taught  him  the  necessity  of  abiding  by  established  prin- 
ciples in  such  affairs,  to  avoid  being  made  dupes  through  appeals  to 
their  good  feelings,  and  thus  sacrificing  the  public  to  individuals. 
Accordingly,  he  said  in  his  letter  of  1784,  (see  Doc.  5,  No.  4,  as 
marked  and  referred  to  in  Maxcy' s  report  :)  "A  cursory  view  of  the 
enclosures  contained  in  this  letter  will  show  the  probability  that  Mr. 
Cazeau' s  demand  is  totally  unfounded."  *  *  *  He  then  guards 
Congress  against  the  encouragement  of  such  claims,  and  says  :  "I  am 
extremely  sorry  to  give  Congress  trouble  on  any  occasion,  but  it  is 
my  duty  to  suggest  the  danger  of  innovating  on  established  rules. 
There  are  in  all  times  and  in  all  countries  persons  who  stand  ready 
to  take  advantage  of  the  unguarded  moments,  and  procure  acts  of  the 
sovereign  authority  injurious  to  the  public  good.  The  best  emotions  of 
the  mind  by  this  means  become  the  sources  of  evil,  and  pity  for  one  operates 
injustice  to  many." 

But  it  is  alleged  in  the  petition  that  Mr.  Barber,  commissioner  of 
accounts  for  the  State  of  New  York,  reported  afterwards,  in  July, 


12 


JACOB  BIGELOW. 


1785,  in  favor  of  the  claim.  But  the  Treasury  Board,  to  whom  Bar- 
ber's report  was  referred  on  the  29th  of  August,  1785,  (see  No.  5,) 
say,  ' '  that  they  have  maturely  considered  the  report  of  said  commis- 
sioner, and  do  not  find  the  claim  of  Francis  Cazeau  supported  by  any 
other  evidence  than  his  own  deposition  ;  although  the  resolve  of 
March  18,  1784,  directs  that  Mr.  Cazeau' s  testimony,  under  oath, 
should  be  admitted  in  support  of  such  evidence  as  the  circumstances  of 
his  case  required. ' '  Mr.  Maxcy,  in  commenting  on  this  action  of  the 
Treasury  Board,  (seeH.  Rep.  No.  694,  29th  Cong.,  1st  session,  p.  9,) 
says  this  declaration  demonstrates  that  the  "concurrent  testimony" 
produced  before  Commissioner  Barber  was  not,  from  some  circum- 
stance not  now  to  be  accounted  for,  referred  to  the  Board  of  the 
Treasury  with  his  report,"  &c. 

And  it  is  assumed  by  Mr.  Maxcy  that,  if  the  board  had  had  all  the 
testimony  before  them  on  which  Barber  had  acted,  they  would  have 
adopted  his  conclusion.  But  this  assumption  on  his  part  that  they 
had  not  all  the  evidence  upon  which  he  acted,  is  wholly  unwarranted, 
and  is  contradicted  by  the  language  above  quoted  from  their  report, 
and  would  take  away  all  justification  for  the  rebuke  they  give  Barber 
for  having  disregarded  the  resolution  of  Congress. 

Maxcy  quotes  from  Barber's  report  the  words  "concurrent  testi- 
mony" and  would  convey  the  idea  to  one  who  had  not  read  Barber's 
report  that  Cazeau' s  testimony  concurred  with  some  one  else,  whereas 
it  is  the  concurrence  or  consistency  of  Cazeau 's  own  statement  of  which 
he  speaks. 

Barber's  report  was  subject  to  another  exception.  The  board  say 
that  Congress,  by  resolution  of  March  18,  1784,  "had  directed  the 
accounts  of  said  Francis  Cazeau  to  be  adjusted  by  the  superintendent 
of  finance  ;  and  order  having  been  taken  on  the  same,  the  reconsid- 
eration of  these  accounts  did  not  come  under  the  cognizance  of  the 
commissioner  of  accounts  for  the  State  of  New  York." 

See  also  No.  7,  Doc.  5,  which  is  a  report  from  the  same  board, 
composed  of  Osgood,  Livingston,  and  Lee,  dated  August  14,  1786, 
on  a  petition  of  Cazeau,  dated  10th  August,  '86,  in  which  they  re- 
peat their  former  report,  that  they  are  not  furnished  with  any  evi- 
dence in  support  of  any  part  of  it. 

It  thus  appears  that  the  superintendent  of  finance,  in  1784,  and 
the  Treasury  Board,  in  1785,  and  again  in  1786,  rejected  this  claim  for 
the  want  of  any  evidence  to  support  it ;  and  that  Congress  reconsidered 
their  resolve  of  '84,  ordering  the  accounts  to  be  adjusted  on  2d  Feb- 
ruary, '86,  and  disallowed  all,  save  the  small  items  for  intelligence  ; 
and  yet,  if  the  dates  are  to  be  credited,  the  claimant  had  then  in  his 
possession  all  the  essential  documents  on  which  Mr.  Maxcy  demon- 
strated not  only  the  character  and  services  of  Mr.  Cazeau,  but  the  par- 
ticulars of  his  loss. — (See  papers  marked  E,  F,  G-,  I,  K,  M,  Q,  R,  and 
S.)  So  that  the  very  evidence  which  is  so  convincing  to  Maxcy,  and 
which,  if  genuine  and  reliable,  is  undoubtedly  conclusive,  existed 
prior  to  all  these  rejections,  and  was  withheld  then  and  afterwards, 
although,  as  we  have  seen,  the  claim  was  rejected  by  the  superinten- 
dent of  finance  and  by  the  Treasury  Board,  again  and  again,  for  the 


JACOB  BIGELOW. 


13 


want  of  this  testimony.  It  is  rendered  certain  that  this  testimony 
was  not  before  them,  not  only  by  the- reasons  which  are  given  in  their 
reports  for  the  disallowance  of  the  claim,  after  the  favorable  action 
on  it  by  the  committee,  of  which  Mr.  Monroe  was  chairman,  and  by 
Congress,  but  from  the  list  of  papers  communicated  to  Mr.  Jefferson, 
then  minister  to  France,  June  4,  1788,  under  resolution  of  Congress, 
to  forward  to  him  copies  of  the  papers  relating  to  the  Cazeau  claim, 
(see  U,  No.  4.)  where  we  find  what  papers  and  certificates  did  accom- 
pany the  memorials,  and  none  of  the  important  papers  above  noted 
are  included.  It  is  manifest  that  they  had  never  been  filed  ;  and  as 
there  is  no  conceivable  reason  for  procuring  them  except  for  presen- 
tation to  Congress,  and  as  they  bear  directly  on  the  points  on  which 
proof  was  required  by  the  superintendent  and  Treasury  Board,  as 
shown  by  Mr,  Maxcy,  no  explanation  can  be  given  of  the  failure  to 
file  them,  except  that  they  did  not  exist  at  the  .  time  they  purport  to 
be  dated. 

Mr.  Maxcy' s  failure  to  note  this  in  his  elaborate  report,  like  his 
observations  on  Barber's  report,  and  some  other  more  remarkable 
evidences  of  his  leaning  to  the  claimants,  hereafter  to  be  noticed, 
shows  the  animus  with  which  he  entered  on  the  duty  committed  to 
him.  When  and  how  these  papers  came  into  existence,  or  by  whose 
agency,  it  is  not  material  to  inquire  ;  for  even  if  due  to  that  accom- 
plished person.  Mr.  Josephus  B.  Stewart,  whose  frauds  and  misrepre- 
sentations are  so  much  insisted  on  by  the  present  claimants,  it  is 
nevertheless  true  that  they  and  Mr.  Maxcy  gladly  avail  themselves  of 
his  doings  and  representations,  false  or  otherwise,  which  go  to  estab- 
lish the  claim,  objecting  only  to  Stewart' s  appropriating  the  fruits  of 
his  labors. 

No  one  acquainted  with  men  will  controvert  the  soundness  of  the 
doctrine  laid  down  by  Messrs.  Morris,  Milligan,  and  Mercier,  in  their 
reports  on  this  claim ;  nor  is  it  any  disparagement  to  any  one  who  has 
since  been  called  to  pass  on  the  questions  of  fact  on  which  they  acted, 
to  deny  to  them  equal  ability  for  giving  a  satisfactory  judgment. 

Maxcy  seems  to  suppose  that  Morris  was  influenced  in  the  rejection 
of  the  demand  by  the  condition  of  the  treasury,  and  quotes  a  letter 
to  show  the  poverty  of  the  government  at  that  time.  But  I  consider 
such  a  suggestion  a  reflection  on  Mr.  Morris'  integrity,  which  Maxcy 
ought  to  have  scrupled  to  make,  lest  his  leaning  the  other  way  might 
be  imputed  merely  to  the  fact  that  the  government  had  grown  rich  in 
the  meantime. 

The  circumstances  to  which  Morris  refers,  as  showing  that  this  claim 
was  probably  unfounded,  have  never  been  successfully  combatted. 

1.  Is  it  at  all  likely  that  if  Arnold  had  directed  Cazeau  to  procure 
provisions,  there  would  have  been  no  one  to  testify  to  it  but  himself? 
From  the  description  given  of  Cazeau,  and  of  his  intimate  relations 
with  our  officers  in  Canada,  it  seems  incredible  that  he  should  not 
have  been  able  to  procure  proof  on  this  point  if  it  had  been  true.  It 
is  excused  on  the  ground  of  secrecy  to  be  observed ;  but  the  order 
must  have  been  communicated  by  some  one,  or  given  by  Arnold  him- 
self ;  and,  besides,  Mr.  Cazeau  would  not  have  been  the  only  person 


14 


JACOB  BIGELOW. 


to  whom  application  would  have  been  made  to  make  such  preparations 
for  the  return  of  the  American  army,  because  the  army  would  in  that 
case  need  something  besides  bread,  which  was  all  Cazeau  provided. 

2.  But  if  Cazeau  was  a  person  so  trusted,  and  so  deserving  of  it, 
why  did  he  waste  the  means  of  the  country  so  uselessly,  when,  as  it 
is  shown,  all  hope  of  the  return  of  the  army  was  given  up  before  he 
bought  the  grain  ? 

3.  But  the  most  extraordinary  part  of  the  story  respecting  the  flour 
is,  that  it  spoiled,  because  the  government  was  so  hostile  that  no  one 
dared  to  deal  with  him  or  work  for  him.  How  did  it  happen  that  he 
could  get  anything  sold  and  delivered,  if  nobody  could  be  found  to 
take  anything  away? 

As  to  the  boats  and  their  cargo  :  how  can  any  one  believe  that  they 
were  destined  for  the  Americans,  and  yet,  when  in  sight  and  ordered, 
refuse  to  come  to,  and  it  is  not  till  long  afterwards  that  we  hear  they 
were  designed  for  the  army  of  the  United  States  ?  Strange,  that  the 
people  in  charge  of  the  boats  would  not  say  to  their  friends  at  the 
time,  ' '  Do  not  fire  on  us — we  are  coming  to  you  ;' '  and  that,  even  when 
captured,  they  cannot  find  words  to  express  this  idea,  and  that  they 
stand  by  and  see  their  master's  goods  made  prize  of  among  his  friends, 
and  do  not  offer  a  word  of  explanation  for  years  afterwards. 

The  only  answer  to  these  facts  is  found  in  the  general  fact  that 
Cazeau  was  a  recognized  friend  of  the  Americans,  and  suffered  for 
it ;  and  it  cannot  be  supposed  probable  that  he  would  defraud  his 
friends. 

I  reply,  that  the  nature  and  extent  of  his  friendship  and  the  value 
of  his  services  were  probably  much  better  known  and  appreciated  in 
1786,  by  the  men  who  participated  in  the  transactions  in  which  he 
claims  part,  than  they  can  possibly  be  known  at  this  day.  And  it  is 
to  be  observed,  also,  that  in  the  account  presented  to  the  French  gov- 
ernment he  professes  to  have  been  actuated  by  the  design  to  recover 
the  Canadas  for  the  French  monarchy ;  that  he  went  back  to  Canada 
from  Paris  by  direction  of  M.  D.  C.  Choisueil,  minister  of  foreign 
affairs,  for  that  purpose,  &c,  &c. — (See  his  affidavit,  Nov.,  1807.) 

Men  are  strangely  mixed  with  good  and  evil,  and  we  are  every  day 
surprised  and  perplexed  by  the  contradictions  this  admixture  presents 
in  the  same  character.  How  forcibly  was  this  exemplified  in  Ar- 
nold himself,  with  whom  this  transaction  is  said  to  have  occurred. 
When  we  find  that  the  extraordinary  courage,  endurance,  enterprise, 
and  talent  which  he  exhibited  in  his  country' s  cause,  were  combined 
with  passions  base  enough  to  induce  him  to  betray  that  very  cause 
afterwards,  we  need  not  be  surprised  at  the  exhibition  of  lesser  vices 
in  others  who  have  not  exhibited  his  extraordinary  virtues.  If  it  be 
true,  therefore,  that  Mr.  Cazeau  was  as  zealous  an  American  as  he  is 
said  to  have  been,  it  by  no  means  follows  that  he  might  not  after- 
wards make  unjust  demands  upon  the  government,  especially  when 
he  became  necessitous.  It  is  manifest,  from  the  account  he  rendered, 
that  he  had  very  unreasonable  ideas  on  the  subject  of  the  extent  of  his 
rights  against  the  United  States,  and  that  he  did  not  mince  matters 
in  running  up  the  account  to  $2,801,251  48.    Among  the  charges, 


JACOB  BIGELOW. 


15 


$59,000  for  his  services  as  secret  agent;  then,  as  colonel  in  the  army, 
$11,600,  (no  commission  ever  having  been  held;)  $352,977  59  for 
property  confiscated,  &c. ;  $296,296  30  for  loss  of  his  commercial  es- 
tablishment; $8,888  89  extra  expenses,  &c. 

He  must  have  had  a  most  extensive  wardrobe,  as  he  charges  for 
twenty  complete  suits  of  clothes,  twelve  dozen  fine  linen  shirts,  &c. 
He  swears  to  the  whole  of  it. 

The  act  of  1817  procured  by  the  false  report  of  the  Senate  committee. 

It  is  true  that  Congress  in  1817  formed  a  different  opinion  upon 
the  subject  of  Cazeau' s  claim  from  the  final  judgment  adopted  by 
the  old  Congress  ;  but  it  is  also  true  that  the  action  of  the  old  Con- 
gress was  not  brought  to  the  attention  of  Congress  in  1817.  See 
report  of  Senate  committee,  (2d  sess.,  14  Con.,  p.  344,)  in  which  the 
committee  say  that  Cazeau  refused  to  accept  the  amount  reported  by 
Barber,  "  not  under standing  the  same  to  be  on  account &c.  I  believe 
that  if  it  then  had  been  known  that  the  subject  had  been  up  before 
Congress  and  their  officers  thirteen  times,  (see  App.  No.  1,)  and  was 
rejected,  after  being  before  them  for  three  years,  the  act  of  1817 
would  not  have  passed. 

Fraud  vitiates  the  act. 

I  think,  therefore,  that  it  is  shown  at  least  that  there  is  no  merit  in 
the  original  claim,  and  that  the  act  of  1817  was  passed  under  a  gross 
mistake  of  facts.  But  the  claimants  here  admit  and  insist  on  the 
falsehood  of  many  of  the  statements  of  the  report  of  the  committee 
under  which  the  act  was  passed,  and  I  have  shown  other  impositions 
put  on  the  legislature  by  the  committee,  and,  together,  we  make  a  case 
of  imposture  and  fraud  which,  perhaps,  the  Court  may  think  requires 
it  to  hold  that  act  null  and  void. 

Payment. —  Was  the  claim  assignable — was  it  assigned  ? 

But  if  the  law  of  1817  be  valid,  has  not  the  money  been  paid  to 
the  proper  parties  ? 

It  is  argued  in  the  negative  by  the  claimants,  as  to  three -fourths  of 
the  amount  paid  Stewart,  on  the  grounds — 

1.  That  the  Cazeau  interest  in  the  claim,  at  the  date  of  the  instru- 
ment by  which  it  was  assigned  in  part  to  Corbeaux,  was  unliquidated, 
and,  therefore,  unassignable. 

The  act  itself  answers  this  objection.  By  that  the  money  is  pay- 
able to  the  "representatives  of  Francis  Cazeau,  late  merchant  at  Mon- 
treal, or  to  his  or  their  assignee,"  &c. 

As  the  act  speaks  of  him  as  deceased,  and  yet  provides  payment  to 
his  assignee,  it  must  be  intended  to  pay  it  to  one  who  had  such  an 
assignment  from  him  by  transfer  anterior  to  the  liquidation  of  the 
claim. 

2.  That  said  instrument  was  but  a  power  of  attorney,  and  was  re- 


16 


JACOB  BIGELOW. 


voked  by  the  death  of  Cazeau.  although  it  was  a  power  coupled  with 
an  interest.  I  admit  that  if  it  be  nothing  but  a  power  of  attorney  it 
was  revoked  by  the  death  of  Cazeau :  but  I  contend  that  it  was  a 
transfer  of  three-fourths  part  of  the  claim,  absolutely  and  indefeasibly, 
for  a  consideration  expressed  to  be  received  by  the  grantor.  That, 
if  possible,  this  is  made  plainer  by  the  provisions  respecting  the 
revocation  of  the  power  given  in  the  same  instrument  to  secure  the 
other  fourth  part,  which  is  declared  revocable  only  on  payment  of  the 
penalty  of  $20. 000.  and  by  the  collateral  instrument  executed  on  the 
same  day.  by  the  second  article  of  which  it  is  provided  that  such 
revocations  may  be  made  by  Cazeau.  without  subjecting  him  to  the 
penalty,  if  the  claim  be  not  successfully  prosecuted  within  the  two 
sessions  of  Congress  then  next  ensuing.  It  is  expressly  stipulated 
in  the  first  article,  after  providing  that  the  consideration  paid  should 
not  be  recovered,  that  "the  three -fourths  interest,  granted  and 
transferred  by  the  Sieur  Cazeau  to  the  Sieur  Corbeaux  in  the  afore- 
said credits  and  claims,  are  equally,  from  this  moment  and  forever, 
secured  by  the  latter  definitively,  irrevocably,  and  Iikeici.se  in  every  state 
of  things  whatsoever. 

That  Mr.  Maxcv  should  have  regarded  this  instrument  as  conferring 
upon  Cazeau  the  right  to  defeat  and  annul  the  whole  of  Corbeaux' s 
interest  in  the  three-fourths,  as  well  as  to  revoke  the  power  over  the 
other  one-fourth,  in  defiance  of  its  plain  language  to  the  contrary, 
must  greatly  impair  his  credit  with  the  Court  as  an  impartial  judge 
in  the  case. 

The  United  States  might  object  to  considering  this  collateral 
agreement  at  all.  as  one  the  existence  of  which  they  had  neither 
actual  nor  constructive  notice  :  but.  as  the  paper  was  intended  only 
to  carry  out  more  explicitly  the  objects  of  the  principal  paper,  such 
objections  are  waived.  How  any  disinterested  man  could  construe 
it  otherwise  is  unaccountable  :  for  although  the  second  article  does 
give  the  right  to  revoke  the  powers  conferred  on  Corbeaux  without 
subjecting  Cazeau  to  the  penalty  which  the  first  instrument  imposed, 
this  only  relates  to  the  interest  of  Cazeau.  and  was  professedly 
intended  only  to  provide  against  injury  "to  the  Sieur  Cazeau.  icho 
remains  proprietor  of  one-fourth,  which  he  has  reserved  to  himself  in  the 
afo  resa  id  credits. ' ? 

Nor  is  this  all :  for.  anticipating  that  it  might  be  held  that  the 
interest  was  unassignable,  they  stipulated  that,  nevertheless,  this 
assignment  should  be  obligatory,  and  Cazeau  should  pay  over  Cor- 
beaux's  proportion.  Whether  there  was  any  actual  consideration,  or 
whether,  as  alleged  by  the  present  claimants.  Cazeau  was  imposed  on, 
is  another  question,  and  is  a  question  of  fact,  which  may  admit  of 
discussion  :  but  as  to  the  construction  of  the  written  instrument 
between  the  parties,  it  seems  to  me  there  can  be  no  dispute. 
Cazeau's  letter  to  Madame  Reeve,  (see  Appendix.  No.  2.)  also  treats 
it  as  making  over  to  Corbeaux  three-fourths,  to  hold  as  his  own 
property. 


JACOB  BIGELOW 


17 


As  respects  the  questions  of  fact,  the  fraud  alleged  to  have  been  practiced 
on  Cazeau,  and  the  supposed  surrender  and  annulment  of  the  assignment. 

The  only  testimony  offered  in  the  case  is  ex  parte.  The  people 
charged  with  fraud  are  not  shown  to  have  heard  of  the  charge,  and 
are  not  interested  in  repelling  or  disproving  it. 

The  two  pieces  of  testimony  considered  most  effective  by  Mr. 
Maxcy  are  those  marked  A  A  and  B  B.  A  A  is  said  to  be  a  letter 
from  Cazeau  himself  to  Mad.  Reeve,  (see  App.  No.  2,)  dated  in  1808, 
in  which  he  speaks  of  Corbeaux  as  having  procured  him  to  assign 
three-fourths  of  his  claim,  and  claiming  to  have  paid  1,200,000  frs., 
without  having  paid  him  a  sou ;  and  that  he  had  instituted  criminal 
proceedings  against  him  for  the  purpose  of  annulling  the  contract 
and  sending  him  to  the  galleys. 

Upon  what  principle  is  such  a  paper  admissible  as  testimony  ?  If 
Cazeau  were  now  alive,  his  statement  could  not  be  received  against 
the  acknowledgments  of  his  deed.  But,  it  is  said,  the  circumstances 
confirm  the  statement.  There  is  the  same  objection  to  the  means  of 
proof  offered  to  show  these  circumstances.  Besides,  the  same  imbe- 
cility which  would  enable  one  man  to  get  his  property  from  him,  and 
acknowledgments  of  the  full  payment  for  it,  with  the  recitals  that 
the  money  so  actually  received  should  not  be  returned,  would  enable 
others  to  get  the  money  away  from  him,  and  leave  him  in  poverty. 

A  A  and  B  B  are  relied  on,  also,  to  prove  judicial  proceedings  to 
reclaim  the  papers  ;  and  it  is  argued  that  this,  with  the  subsequent 
possession  of  the  papers,  proves  the  surrender  of  the  papers  and  the 
annulment  of  the  assignment.  This  is  a  very  unwarrantable  conclu- 
sion. If  there  had  been  a  judicial  annulment,  it  would  undoubtedly 
have  been  produced.  The  possession  of  the  papers  argues  nothing, 
for  Corbeaux  offered,  through  Mr.  Thille,  to  permit  Mr.  Cazeau  to 
repossess  the  papers  in  the  office  of  the  minister  of  foreign  affairs, 
if  he  thought  proper  to  apply  for  them,  but  distinctly  refused  to 
relinquish  his  rights  under  the  agreements.  If  the  papers  at  the 
office  were  the  originals  spoken  of,  his  subsequent  possession  of  them, 
therefore,  clearly  argues  nothing.  But  I  suspect  that  few,  if  any,  of 
the  papers  were  there  :  because  we  find  this  letter  of  Cazeau' s,  of 
1808,  speaks  of  having  then  employed  General  Mason,  of  George- 
town, in  his  business,  who  says,  in  his  letter  E  E,  he  was  referred  to 
Victor  Dupont  and  to  Mr.  Duplanty,  for  the  documents  in  support  of 
the  claim  ;  who  said,  in  reply,  that  the  documents  were  in  the  hands 
of  Mr.  Cazeau' s  son,  in  Canada,  and  the  non-reception  of  them  de- 
layed Mason's  action  till  Cazeau  died. 

But  subsequent  to  the  date  of  this  letter  informing-  the  grandson  of 
the  employment  of  Mason,  viz  :  on  the  20th  of  December,  1808,  we 
find  the  original  of  assignment,  which  it  is  supposed  in  argument  was 
surrendered  to  be  cancelled  at  the  time  of  the  recovery  of  the  original 
papers,  still  remained  on  file  in  the  office  of  the  American  consul  at  Paris. 
As  we  see,  however,  that  Mason,  who  had  already  been  employed,  was 
referred  to  persons  in  America  for  the  original  papers,  it  is  rendered 

Mis.  Doc.  190  2 


18 


JACOB  BIGELOW. 


certain  that  such  originals  were  not  recovered  of  Corbeaux,  and  the 
probability  is,  indeed,  that  these  papers  had  never  been  in  Corbeaux' s 
possession  at  all,  for  the  same  letter  of  Cazeau  to  his  grandson  speaks 
of  his  son  Charles,  who  had  the  papers,  as  having  been  his  agent 
previously,  and  the  probability  is  that  these  papers  were  in  the  hands 
of  Charles,  or  Dupont,  or  Duplanty,  in  America,  at  the  time  of  the 
assignment  to  Corbeaux  and  afterwards,  and  the  papers  which  Cor- 
beaux had  were, -probably,  only  the  copies  which  were  afterwards 
used  by  Stewart. 

The  possession  of  the  other  original  papers  by  the  claimants  does 
not,  therefore,  go  to  show  the  surrender  of  the  assignment  by  Corbeaux. 
What  other  evidence  is  there  ? 

There  is  no  judicial  decree  or  compulsory  process.  The  evidence 
of  Mr.  Thille,  adduced  by  the  claimants,  which  is  the  latest  account 
we  have  of  the  relations  between  the  parties,  shows  that,  whilst 
Corbeaux  offered  no  objection  to  Cazeau' s  possessing  himself  of  certan 
papers,  he  adhered  to  the  rights  he  had  acquired  by  virtue  of  his 
agreement  with  Cazeau.  Against  this  positive  assertion  of  these 
rights  in  1808,  and  his  subsequent  assertion  of  them  here  before  Con- 
gress, what  evidence  is  there  that  he  had  surrendered  them  in  the 
intermediate  eight  years  ?  Nothing  but  the  allegation  that  the 
original  assignment  now  produced  in  court  was  produced  by  the 
present  claimant,  and  the  only  evidence  of  this  is  that  Mr.  Maxcy 
says,  in  his  report,  that  he  found  nothing  but  a  copy  filed  in  the 
register's  office;  and  hence,  and  hence  only,  it  is  inferred  that  the 
present  claimant  found  the  original  among  Cazeau' s  papers  and  pro- 
duced it.  There  is  no  direct  evidence  that  such  was  the  fact ;  no 
one  proves  either  the  finding  of  this  paper  in  Cazeau' s  possession,  or 
the  filing  of  it.  Mr.  Maxcy  does  not  say,  as  I  understand  his  report, 
that  this  original  paper  accompanied  the  memorial  of  the  present 
claimant.  The  paper  Y,  of  which  he  speaks  as  accompanying  the 
memorial,  is  a  copy.  But,  if  he  should  be  supposed  to  intend  to  say 
that  the  original  accompanied  the  memorial,  how  does  he  know  the 
facts  of  which  he  speaks  ?  How  can  he  know  it  ?  The  memorial 
itself,  and  all  the  papers,  were  withdrawn  by  the  claimant  from  the 
files  of  Congress,  (see  Dicken's  statement,)  and  it  is  now  presented 
in  evidence  to  enable  us  to  see  either  the  ground  on  which  relief  was 
prayed,  or  the  exhibits  and  proofs  presented. 

If  it  be  admitted,  however,  that  this  identical  paper  was  presented 
by  these  claimants,  and  the  inference  adopted  that  it  was  obtained 
from  Cazeau' s  papers,  does  it  follow  that  it  was  obtained  by  him  from 
Corbeaux,  or  that  it  was  surrendered  by  Corbeaux  as  a  surrender  of 
his  rights  ? 

It  must  be  assumed,  in  order  to  this  reasoning,  that  this  paper  was 
the  only  original  executed  between  the  parties,  and  that  Corbeaux 
was  the  depositary  of  it. 

Against  the  first  assumption  we  have  the  language  of  the  instru- 
ment itself,  that  it  was  ' '  an  agreement  indented  of  two  parts,11  to  which 
the  parties  had  ^interchangeably  affixed  their  hands  and  seals;"  also 
the  nature  of  the  instrument  which  created  such  mutual  obligations 


JACOB  BIGELOW. 


19 


as  to  require  it  to  be  interchangeably  signed  and  executed,  thus 
showing,  by  its  terms  and  by  its  nature,  that  it  was  probably  exe- 
cuted in  duplicate.  If  this  should  be  the  construction  and  conclusion 
adopte  1  by  the  Court,  of  course  the  production  of  one  original  by 
the  claimant  argues  nothing ;  he  was  entitled  to  one,  the  other  party 
was  entitled  to  the  other,  and  may  have  it  now  in  his  possession. 

It  does  not  follow,  by  any  means,  that  it  is  not  and  was  not  in  his 
possession  because  it  is  not  now  found  in  the  Treasury  Department. 
By  what  law,  or  by  what  legal  reasoning,  is  it  assumed  that  the 
Treasury  Department  is  the  permanent  depository  of  the  original 
papers  of  Frenchmen,  necessary  to  be  used  in  France  to  determine 
the  rights  of  individuals  between  themselves.  The  circumstance 
that  the  same  instrument  contained  a  power  of  attorney  from  one  to 
the  other  to  transact  business  with  a  third  person,  would  not  make 
such  third  person  the  legal  custodian  of  the  paper,  nor  would  the 
absence  of  it  from  his  vouchers,  and  the  presence  of  a  copy,  prove  or 
raise  the  presumption  that  the  original  had  not  been  presented.  The 
natural  course  of  business  in  such  a  case  between  business  men 
would  be  marked  by  precisely  the  evidence  we  have  here.  The 
original  of  such  a  paper  required  to  be  used  elsewhere  would  not 
be  left  as  a  voucher  on  settlement  with  a  third  person ;  such  third 
person  would  have  no  right  to  demand  the  surrender  of  the  original 
paper;  all  that  could  be  required  in  reason  would  be,  to  be  furnished 
with  an  authentic  copy  of  the  paper. 

If,  on  t.'ie  other  hand,  the  Court  should  be  of  opinion  that  the  paper 
was  not  executed  in  duplicate,  the  possession  of  it  by  Cazeau's  admin- 
istrators does  not  imply  the  surrender  or  abandonment  by  Corbeaux  of 
his  rights  under  it,  because — 

1.  Considered  as  the  only  original,  in  connexion  with  the  fact  in 
proof  that  it  remained  on  deposit  at  the  consul's  office  in  Paris  more 
than  a  year  after  it  was  executed  and  delivered,  it  is  probable  that 
the  office  was  made  the  depository  of  the  original. 

2.  It  is  never  shown  to  have  been  in  the  actual  possession  of  Cor- 
beaux, for  although  its  formal  delivery  is  attested  so  as  to  give  legal 
effect  to  its  provisions,  it  is  certified  more  than  a  year  afterwards  that 
the  copy  given  to  Corbeaux  was  a  true  copy  of  the  original  which 
remained  on  deposit  in  the  office  of  the  consul.  Why  should  Corbeaux 
want  a  copy  if  he  had  the  original,  or  had  a  right  to  the  possession  of 
it,  and  could  have  had  it  for  the  asking? 

It  is  said,  indeed,  that  the  consul  certifies  what  was  not  true,  in 
certifying  that  this  was  a  copy  of  the  original;  and  perhaps  it  will  be 
urged  that  he  supposed  his  record  was,  like  that  of  a  notary,  the 
original.  But  the  language  used  by  him  does  not  admit  of  this  con- 
struction ;  he  speaks  of  the  original  instrument,  first,  as  being  depos- 
ited, and  then  of  it  as  being  registered  at  a  date  long  subsequent  to 
the  date  of  its  execution. 

Nor  is  there  any  reason  for  supposing  it  to  have  been  deposited 
subsequent  to  the  date  of  its  execution  and  delivery.  The  fact  that 
a  dispute  had  arisen  within  five  months  afterwards  between  the 
parties ;  that  the  power  of  attorney  had  been  revoked,  and  that  at 


20 


JACOB  BIGELOW. 


the  date  of  the  copy  of  Cazeau' s  letter,  which  was  30th  November, 
1808,  it  was  at  its  hottest,  repels  altogether  the  presumption  that 
Corbeaux  would  have  put  the  original  paper  out  of  his  power,  if  he 
then  had  it  in  his  power.  Under  such  circumstances,  when  the  fact 
alone  appears  that  a  paper  affecting  the  rights  of  two  persons,  which 
was  deposited  at  the  consul's  office,  is  found  in  the  possession  of  one 
of  them,  is  it  to  be  inferred  that  the  other  either  consented  to  the 
surrender  of  the  paper  or  abandoned  his  rights  under  it  ? 

Can  a  case  be  shown,  under  any  system  of  law,  where  a  party 
having  divested  himself  of  his  rights  by  a  sealed  and  recorded  instru- 
ment, is  held  to  have  reinvested  himself  in  them  by  merely  getting 
possession  of  the  original  deed  ?  It  is  said  the  possession  argues 
either  that  the  paper  was  not  delivered,  or  that  it  was  reacquired 
fairly.  In  this  case  it  is  attested  on  the  face  of  the  instrument  that 
it  was  formally  delivered,  so  as  to  give  effect  to  it ;  and  we  have  seen 
that  it  was  deposited  with  the  consul.  Under  Avhat  circumstances, 
and  at  what  time,  and  by  whom  it  was  obtained  from  that  officer ; 
whether  by  Cazeau  or  some  other  person;  whether  before  Cazeau' s 
death  or  since  ;  whether  before  the  act  of  1817  was  passed,  and  the 
money  paid  on  it,  or  since,  is  not  shown ;  and  no  circumstance  is 
offered  in  evidence  from  which  either  the  time,  the  manner,  or  the 
person  can  be  inferred.  It  is  shown,  however,  that  immediately  after 
Stewart  obtained  payment  of  the  money,  in  1817,  the  fact  became 
known  to  the  claimants,  one  of  whom  came  to  Washington,  and  went 
thence  to  Paris.  As  the  whole  case,  so  far  as  the  three-fourths  is 
concerned,  depended  on  showing  the  actual  annulment  of  the  agree- 
ment between  Cazeau  and  Corbeaux  prior  to  the  payment  to  Stewart, 
and  as  the  transaction  was  then  recent,  it  might  be  expected  that 
some  direct  evidence  would  be  produced.  The  papers  on  file  in  the 
treasury  showed  that  when  Corbeaux  got  the  copy  of  his  power,  the 
original  was  on  file  at  the  office  of  the  consul  at  Paris.  If  the  original 
continued  on  file  in  that  office,  and  was  then  delivered  up  to  Reeves, 
such  delivery  would  not  avail.  If  it  had  been  delivered  up  previously 
to  Cazeau  by  the  consent  of  Corbeaux,  there  would  probably  be  some 
written  evidence  of  that  consent  preserved  in  the  office,  or  some  one 
in  the  office  who  could  testify  to  a  fact  then  recent.  The  time  of  the 
delivery  is  therefore  as  material  as  the  delivery  itself,  and  there  is  no 
reason  for  presuming  that  the  time  was  prior  to  Cazeau' s  death  rather 
than  afterwards.  This  is  fatal  to  the  claim,  on  the  doctrine  of  pre- 
sumption.— (See  Cowen  and  Hill's  Notes,  part  1,  p.  469.)  Indeed, 
there  is  more  reason  for  supposing  it  surrendered  afterwards  than 
previously,  if  the  consent  of  Corbeaux  is  to  be  assumed ;  for,  to  the 
last  accounts  Ave  have  of  Corbeaux  disposition  in  the  matter  during 
Cazeau' s  life,  we  find  him  persistent  in  the  assertion  of  his  rights 
under  the  agreement.  But,  as  it  would  not  interfere  with  him  in  any 
way  for  the  Cazeau  heirs  to  get  the  money  paid  to  them,  if  they 
could,  by  merely  having  the  possession  of  this  paper,  it  is  quite  con- 
sistent with  the  character  the  claimants  give  of  him  and  of  his  accom- 
plished agent,  Mr.  Joseph  B.  Stewart,  that  they  should  then  agree 
to  let  Mr.  Bigelow  have  the  use  of  it. 


JACOB  BIGELOW. 


21 


No  argument  can  be  drawn  from  the  possession  of  the  paper. 

This  deed  was  an  agreement  between  the  parties  "interchangeably 
executed,"  and  was  the  evidence  as  well  of  Cazeau's  rights  as  of 
Corbeaux' s,  and  there  is  no  reason  why  Corbeaux  should  have  had 
exclusive  possession  of  it,  and  no  argument,  therefore,  can  be  drawn 
from  Cazeau's  possession. 

The  attempt  to  show  an  official  surrender  of  the  assignment  by  a  false 

translation. 

Another  attempt  to  show  that  the  assignment  was  received  from 
Corbeaux  judicially,  or  at  least  to  show  its  surrender  through  official 
hands,  is  based  on  the  paper  A  A  ;  the  letter  of  Cazeau  of  November 
30,  1808,  and  the  receipt  of  Thille  attached. — (For  correct  transla- 
tion, see  App.  No.  2.) 

Only  a  part  of  Cazeau's  letter  is  translated  by  the  claimant,  or  by 
Maxcy,  and  Thille' s  receipt  is  grossly  mis-translated  to  support  the. 
argument. 

The  Court  will  observe  that  that  part  of  the  letter  of  which  the 
translation  is  found  among  the  papers,  speaks  of  the  institution  of 
proceedings  against  Corbeaux.  The  receipt,  as  translated,  appears  to 
be  :  1.  For  the  price  of  drawing  the  revocation  of  the  power  to  Cor- 
beaux ;  2.  The  denunciation  of  it  (the  acknowledgment?)  to  the 
notary  ;  3.  A  summons.  And  concludes  with  this  language  :  "I  au- 
thorize and  request  Mr.  Lebon,  advocate,  to  whom  I  have  remitted 
these  acts  with  the  expedition  of  a  power  of  attorney  given  by  Mr. 
Cazeau  to  Corbeaux,  to  return  them  to  the  bearer  of  this  receipt,  at 
Paris,  January  26,  1809." 

The  latter  part  of  this  is  interpreted  to  be  an  order  on  Lebon,  in 
favor  of  the  bearer,  Cazeau,  for  the  revocation,  <fcc,  and  tJie  power  of 
attorney  fr om  Cazeau  to  Corbeaux! 

The  true  translation  of  the  last  clause 'm  this  paper  is  as  follows  : 
"  3.  A  citation  to  Mr.  Corbeaux,  dated  2d  May  following,  by  virtue  of 
which  I  authorize  and  request  Mr.  Lebon,  advocate,  to  whom  I  have 
passed  these  instruments,  on  tlve  22d  July  last,  with  a  copy  of  the  power 
of  attorney  executed  by  Mr.  Cazeau  to  Corbeaux,  that  he  (Mr.  Lebon) 
will  be  pleased  to  have  them  delivered  to  the  doorkeeper  of  the  prefect" 
at  Paris,  &c. — (See  App.  No.  2.) 

The  difference  is  obvious,  and  the  object  is  shown  by  the  argument 
attempted  to  be  drawn  from  the  paper.  But  when  the  date  at  which 
these  papers  were  delivered  to  Lebon  is  put  in — (it  is  omitted  alto- 
gether in  claimant's  translation) — 22d  July,  1808 — and  it  appears  that 
it  was  a  copy  of  the  power  of  attorney  which  was  to  be  delivered  by 
Lebon  to  the  prefect,  and  not  the  original — the  expedition  of  which  to 
Mr.  Cazeau  was  committed  to  him  according  to  the  claimant' s  transla- 
tion— it  is  manifest  the  receipt  relates  to  transactions  anterior  to  the 
letter,  at  the  date  of  which  their  difficulty  was  unsettled.  A  copy, 
to,  and  not  the  original,  is  to  be  delivered,  and  delivered  to  the  pre- 


22 


JACOB  BIGELOW. 


feet,  not  to  Cazeau  ;  and  so  we  find  these  are  but  the  preliminaries  of 
litigation,  and  not  results  ;  preliminaries,  too,  which  authorize  the  pre- 
sumption that  an  authentic  record  exists  of  some  judicial  proceedings 
on  the  subject,  and  the  failure  to  produce  that  record  authorizes  the 
presumption  that  its  production  would  not  be  favorable  to  a  party 
who  seeks  to  substitute  presumptions  for  it. 

Effect  of  the  rule  against  secondary  evidence  on  the  claimant's  case,  and 
his  effort  to  avoid  it  considered. 

It  is  illegal  for  the  government  to  pay  the  first  time,  according  to 
the  claimant' s  logic,  on  any  but  the  best  evidence  that  an  assignment 
was  made  ;  but  it  is  permissible  to  pay  a  second  time  to  one  who  claims 
that  the  assignment  was  annulled  and  invalid  at  the  time  of  the  first 
payment,  upon  the  most  shadowy  evidence  of  such  annulment — upon 
no  clear  evidence,  indeed,  of  any  single  fact  on  which  to  raise  the 
slightest  presumption  that  such  annulment  had  ever  taken  place. 

True,  an  olfort  is  made  to  escape  from  this  dilemma  by  a  sort  of 
plea  of  ofiset,  that  as  the  United  States  committed  an  error  in  per- 
mitting secondary  evidence,  the  claimants  ought  to  be  permitted  to 
recover  without  any  evidence  at  all  but  merely  on  their  own  statement. 

This  is,  in  substance,  the  ground  taken  in  the  brief,  where  it  says 
the  claimant  only  admits  that  the  copy  on  which  the  government  paid 
was  a  true  copy,  coupled  with  the  statement  that  the  assignment  was 
null.  Who  asked  him  to  admit  anything  about  it?  If  he  had  chosen 
to  bring  us  into  court,  and  put  us  to  the  proof  to  show  payment  of 
the  money,  if  we  could  not  have  produced  the  original,  we  should 
have  offered  the  copy.  If  objected  to  and  ruled  out,  we  would  have 
shown  the  loss  of  the  original,  or  that  it  was  not  within  our  control,  and 
so  laid  the  foundation  for  letting  in  the  copy  to  prove  the  fact  that 
the  interest  was  assigned  to  the  man  whose  receipt  we  held.  This 
would  satisfy  the  strictest  rules  of  practice.  It  is  of  no  moment 
whether  there  was  any  power  of  attorney,  copy,  or  original  presented, 
or  receipt  taken  when  the  payment  was  made,  or  whether  the  proper 
basis  was  then  laid  for  the  admission  of  secondary  evidence  or  not. 
It  suffices  if  we  show  a  proper  receipt  and  power  at  the  trial,  and  a 
copy  would  then  be  admissible  if  we  had  not  then  in  our  possession  or 
control  the  original. 

But  if  we  had  to  depend  altogether  on  the  claimant's  admission, 
with  his  statement  annexed,  the  rule  does  not  require  that  the  state- 
ment annexed  shall  be  believed.  The  rule  requires  only  that  such 
statements  shall  also  be  admitted  in  evidence.  The  Court  is  only 
bound  to  hear  the  statement  of  fact  which  the  claimant  makes  in  such 
connexion,  and  is  not  bound  to  believe  it ;  and  is  still  less  bound  to 
adopt  the  legal  opinions  based  on  the  fact  so  stated. 

The  statement  of  fact,  touching  the  supposed  annulment  which 
accompanies  the  admission  that  the  copy  is  genuine,  is  merely  that 
Cazeau  died  in  posession  of  the  original  paper.  That  it  had  been 
actually  annulled  or  cancelled  is  not  stated  as  a  fact  by  the  claimant, 


JACOB  BIGELOW. 


23 


but  is  merely  matter  of  inference  from  this  fact,  and  the  documents 
and  papers  before  the  court. 

But  assuming  all  the  facts  alleged  to  be  proved,  the  claim  has  no  merit 

legally  or  equitably. 

The  claim,  with  this  admission,  depends  upon  showing  that  money 
was  unlawfully  paid  out  of  the  treasury  to  one  whose  authority  to 
receive  it  was  shown  by  an  authentic  copy  of  a  sufficient  assignment. 
This  proposition  is  supposed  to  be  demonstrated  by  showing  that  such 
an  instrument  would  be  inadmissible  testimony  in  courts  of  justice.  If 
this  reasoning  be  conclusive,  it  may  be  demonstrated  that  there  never 
was  a  lawful  payment  at  the  treasury ;  for  in  no  case  is  the  evidence 
required  there  to  obtain  payment  the  same  required  in  courts  to 
obtain  judgment ;  such  a  requirement  would  render  it  impracticable 
to  transact  the  business  of  the  government ;  for,  in  addition  to  requir- 
ing in  all  cases  the  production  of  original  instruments,  such  instruments 
must  be  proved  by  the  subscribing  witnesses.  Thus,  in  the  case  before 
us,  if  the  original  instrument  had  been  produced,  it  could  have  been 
maintained  with  equal  reason  that  the  payment  was  illegal,  unless  the 
execution  of  the  instrument  had  been  proved  by  the  subscribing  wit- 
nesses, or  without  proof  of  the  identity  of  the  person,  &c,  &c.  The 
certificate  of  the  counsel  would  prove  nothing  in  a  court  of  justice,  as 
there  is  no  law  authorizing  him  to  take  any  one's  acknowledgment  of 
a  deed  ;  and  the  act  of  April  14,  1792,  vol.  1,  p.  254,  only  authorizes 
the  taking  of  protests  or  declarations  of  citizens  of  the  United  States, 
and  these  persons  were  not  citizens. 

There  being  no  statutory  law  regulating  the  evidence  upon  which 
such  payments  are  to  be  made,  and  the  reasoning  drawn  from  the 
requirements  of  courts  at  trials  being  inapplicable  to  these  transac- 
tions of  business  in  the  department,  and  such  requirements,  in  fact, 
being  both  unusual  and  impossible,  there  can  be  no  pretence  for 
saying  that  the  payment  was  illegal  in  any  sense. 

But  it  may  be  said  that  there  was  no  statute  law  violated  by  the 
officers  in  making  the  payment  in  question,  and  admitted  that  neither 
the  government  nor  individuals  could  be  expected  to  conduct  their 
ordinary  business  on  the  rules  of  evidence  required  in  courts,  yet  that 
neither  the  government  nor  individuals  were  required  to  be  expressly 
notified  that  an  agent  has  been  superseded,  or  that  an  assignment  has 
been  invalidated,  if  any  circumstances  are  made  known  to  the  paying 
party  which  would  put  a  man  of  ordinary  prudence  on  his  guard,  and 
induce  inquiry  in  the  proper  quarter  as  to  the  real  state  of  the  busi- 
ness between  the  claimants. 

Was  there,  then,  anything  in  the  circumstances  of  this  case  to  put 
a  careful  officer  on  his  guard,  or  from  which  it  could  be  inferred  that 
there  was  anything  wrong,  or  notice  be  implied  not  to  pay  the  three- 
fourths  over  to  the  agent  of  Corbeaux? 

Stewart,  to  whom  the  money  was  paid,  it  seems,  had  been  chan- 
cellor in  the  consulate  at  London  under  Colonel  Aspinwall,  and,  as 
Aspinwall  testifies,  had  borne  an  uninpeached  character,  and  he  ex- 


24 


JACOB  BIGELOW. 


pressed  great  surprise  when  he  was  afterwards  told  that  he  had  acted 
dishonestly. 

He  presented  as  his  authority  a  copy  of  an  instrument  acknowledged 
before  the  consul  at  Paris.  It  was  but  a  copy,  it  is  true,  but  it  was 
a  copy  certified  by  the  consul,  who  at  the  same  time  certified  that  the 
original  remained  on  deposit  in  his  office. 

In  the  absence  of  any  statutory  rule  requiring  the  production  of  the 
original  paper,  is  there  any  reason  to  distinguish  between  the  credit 
to  be  given  to  a  paper  which  you  are  convinced  is  a  faithful  copy  and 
the  original  ?  It  is  true  that  there  is  another  link  in  the  chain  of  proof, 
and  therefore,  philosophically  speaking,  the  evidence  is  weaker.  But 
in  a  case  like  this,  where  a  paper  is  produced  as  a  voucher  against  the 
government,  and  it  is  certified  to  be  a  copy  by  one  of  its  own  officers  of 
an  original  deposited  in  his  office,  and  so  is,  in  fact,  in  the  possession 
of  the  government,  would  there  be  actually  any  appreciable  difference 
between  the  effect  produced  on  the  mind  by  a  copy  so  authenticated 
and  by  the  original  ?  Practically,  there  would  be  no  difference  ;  and 
this  is  so  true  that  in  many  of  the  States — in  Missouri,  for  instance — 
the  common  law  rule  requiring  the  production  of  the  original  is  aban- 
doned in  the  case  of  recorded  instruments,  certified  copies  from  the 
record  being  admissible  in  evidence  with  like  effect  as  originals.  And 
what  reason  is  there  for  requiring  the  observance  of  the  common  law 
rule  in  the  Treasury  Department,  in  preference  to  the  Missouri  rule  ? 
One  is  just  as  obligatory  on  it  as  the  other,  as  law.  Both  are  open  to 
selection  by  the  officers,  as  convenience  and  reason  shall  recommend 
them. 

Under  such  circumstances,  if  under  any,  the  officers  would  be 
justified  in  paying  to  an  assignee. 

Nor  is  the  fact  that  eight  or  nine  years  elapsed  before  the  passage 
of  the  law,  after  the  copy  was  obtained,  a  fact  suggestive  of  suspicion. 
The  natural  and  legal  presumption  would  be,  that  the  original 
continued  on  deposit  with  the  consul,  and  that  the  assignment  was 
unquestioned,  unless  those  who  were  interested  to  question  it  made 
known  their  objections. 

The  fact  that  Stewart  did  not  move  in  the  matter  at  all  before  Con- 
gress till  the  session  of  1816-17  would  not  be  noticed  at  the  treasury  ; 
nor  the  character  of  the  testimony,  or  representations  used  by  him 
before  Congress  to  obtain  the  passage  of  the  act.  These  might  be 
important  if  the  present  claimants  proposed  to  set  aside  the  act ;  but 
as  they  are  not  solicitous  for  that,  but  propose  only  to  draw  in  question 
the  action  under  it,  the  testimony  used  in  procuring  the  act,  and  the 
time  and  manner  at  which  it  was  procured,  are  not  of  any  moment 
here. 

But  if  the  attention  of  the  officers  had  been  drawn  to  the  delay  of 
Corbeaux  in  thus  acting  on  his  assignment,  any  presumption  against 
its  validity,  arising  from  his  failure  to  present  the  claim  sooner, 
would  be  rebutted  by  the  fact  that  no  one  else  appeared  to  assert  any 
right  to  it  till  many  months  after  the  passage  of  the  act  and  payment 
of  the  money  under  it. 

Laches  are  not  imputable  to  the  officers  of  the  government,  9  Wheat. 


JACOB  BIGELOW. 


25 


720.  In  this  matter  these  claimants,  it  appears  by  Cazeau' s  letter, 
neglected  him.  and  the  claim,  too,  while  it  was  his,  and  until  Stewart 
had  been  successful  with  it.  He  says,  in  the  letter  of  November  30, 
1808.  that  he  had  not  heard  from  any  of  them  in  three  years  ;  that 
Charles  had  advanced  him  nothing  :  that  in  his  poverty  and  sickness 
he  had  to  depend  on  strangers,  and  that  he  was  forced  to  get  strangers 
to  attend  to  his  affairs  ;  nor  was  this  because  they  were  not  persons 
capable  of  looking  after  such  things,  as  is  manifest  from  the  fact  that 
some  of  them  are  merchants  and  business  men.  (see  Cazeau  s  letter,) 
and  from  the  diligence  and  success  with  which  they  have  had  them 
attended  to  since. 

M.  BLAIR. 


APPENDIX.  — Xo.  1. 

Statement  of  proceedings  on  Cazeairs  claim,  and  their  several  dates. 

1783. — A  committee  report  favorably  on  the  claim. 
Feb.  6,  1783. — Report  referred  to  the  superintendent  of  finance 
"to  take  order.'' 

Jan.  26,  1784. — A  committee  report  favorably,  and  propose  seven 
resolutions. 

March  4.  1784. — The  above  assigned  for  consideration  on  the  18th. 

March  18.  1784. — The  report  and  resolutions  passed. 

April  1,  1784. — The  Auditor  makes  his  report  to  the  Comptroller, 
stating  that  no  proof  is  offered  to  support  the  account. 

April  8.  1784. — The  Comptroller  adopts  the  views  of  the  Auditor, 
and  enlarges  on  them  in  a  letter  to  the  superintendent  of  finance. 

April  13.  1784. — The  superintendent  concurs  in  the  views  of  these 
officers,  and  transmits  their  reports  to  Congress. 

May  6,  1785. — A  committee  of  Congress  recommend  a  repeal  of 
the  resolves  of  18th  March,  1784,  which  is  referred  to  the  board  of 
treasury. 

June,  1785. — The  resolution  passes  directing  the  commissioners  for 
settling  accounts  of  the  State  of  Xew  York  with  the  United  States 
to  examine  the  accounts  of  such  Canadian  refugees  as  have  furnished 
the  late  armies  with  any  sort  of  supplies,  and  report  thereon  to 
Congress. 

July  27,  1785. — William  Barber  reports  to  Congress  his  settlement 
of  Cazeau' s  claim  under  this  resolve. 

August  29.  1785. — The  board  of  treasury  report,  repealing  the 
resolutions  of  18th  March,  1784,  excepting  that  relating  to  expresses. 

Feb.  2,  1786. — The  repealing  resolution  passed,  according  to  the 
report  of  the  treasury  board, 


26 


JACOB  BIGELOW. 


No.  2. 

April  24. 

Dear  Sir  :  Enclosed  you  will  find  a  translation  of  Cazeau's  letter 
and  the  receipt  attached  to  it,  and  the  originals. 
Yours,  &c,  <fcc, 

J.  C.  PICKETT. 

M.  Blair,  Esq. 

[Duplicate.] 

Paris,  November  30,  1808. 

I  have  not  heard  anything  from  you,  my  dear  children,  for  three 
years.  What  are  you  thinking  about  ?  Both  your  duty  and  your  in- 
terests require  that  you  should  watch  more  carefully  over  my  life.  I 
have  not  yet  finished  my  business.  During  nine  years  that  Charles 
has  been  acting  as  my  agent  and  attorney,  he  has  advanced  nothing, 
and  I  am  obliged  to  have  recourse  to  strangers  to  superintend  my 
affairs.  Consequently,  I  have  authorized  General  Mason,  of  George- 
town, to  attend  to  the  adjustment  of  my  claims  before  Congress, 
which  do  not  amount  to  less  than  three  millions  of  dollars,  with 
interest  on  the  whole.  And  with  the  view  of  hastening  an  adjust- 
ment, I  have  empowered  *Mons.  Orthling — rue  de  la  Magdelene, 
Fauxbourg  Honore,  No.  14 — to  attend  to  my  affairs.  He  will  make 
all  the  necessary  advances.  He  has  great  resources  of  fortune,  and 
others  that  I  do  not  (cannot)  name.  I  wish  him  to  make  me  an  ad- 
vance of  money,  but  I  do  not  know  whether  he  will  do  so  until  he 
gets  my  power  of  attorney.  Just  now,  upon  my  recovery  from  a  very 
dangerous  illness,  which  has  lasted  nearly  two  years,  I  find  myself  in 
very  straitened  circumstances.  I  have  had  intermittent  fever,  jaundice, 
and  dropsy  for  eighteen  months,  and  had  become  so  weak  that  it  was 
necessary  to  have  two  persons  constantly  with  me,  and  they  never 
abandoned  me.  It  was  not  so,  however,  with  the  physicians.  Two 
of  them  deserted  me,  and  the  third  has  cured  me.  I  owe  a  large 
compensation  to  those  who  have  attended  me  and  have  made  the 
advances  I  needed. 

At  present  I  am  tolerably  well,  but  it  is  important  that  I  should 
take  good  care  of  myself.  I  think  of  going  to  the  country  next  spring 
for  a  change  of  air. 

A  year  ago  I  gave  a  power  of  attorney  to  a  certain  Francis  Corbeaux. 
He  wrote  it  himself,  and  in  such  a  way  that  he  has  got  possession  of 
three-fourths  of  my  fortune,  by  practicing  a  deception  on  me.  Judg- 
ing him  by  his  actions,  I  believe  him  to  be  one  of  the  worst  and  most 
dangerous  men  in  Paris.  I  have  brought  him  before  the  criminal 
court.  The  case  has  not  yet  been  decided.  My  witnesses  will  be 
examined  whenever  they  shall  be  required  to  be.  He  makes  it  ap- 
pear that  he  has  paid  me  1, 200, 000  francs,  although  I  have  not  received 
from  him  a  single  sou,  which  I  can  prove  ;  and  the  consequence  will  be, 


*  Likewise  Francis. 


JACOB  BIGELOW. 


27 


that  my  authority  to  him  will  be  annulled,  and  he  will  be  condemned 
to  the  galleys.    I  will  inform  you  of  what  takes  place. 

How  are  my  dear  grandchildren?  Let  me  hear  from  them,  and 
what  progress  they  are  making  in  their  education.  And,  as  regards 
those  engaged  in  commerce,  I  regret  that  it  has  not  been  in  my  power 
sooner  to  assist  them.  I  do  not  know  the  names  of  Cazeau' s  children, 
but  they  are  equally  dear  to  me.  It  would  be  a  great  happiness  for 
me  if  I  could  have  the  pleasure  of  seeing  them.  Embrace  them  all 
for  me. 

Give  me  some  news  of  our  friends  on  the  river  St.  Pierre  and  

[Some  of  the  words  being  hidden  by  the  wafer,  the  rest  of  the  sentence 
cannot  well  be  made  out.  It  is  of  no  consequence,  however,  being 
merely  inquiries  about  friends.] 

May  you  all  enjoy  health  and  prosperity.  I  am  and  will  ever  be 
your  tender  and  affectionate  father.    I  embrace  you. 

-  FR'S  CAZEAU. 

Let  me  hear  from  you  all  in  a  letter. 

Address — Rue  de  Verneuil,  No.  21,  Fauxbourg  St.  Germain. 


Translation  of  the  paper  attached  to  M.  Cazeau' 's  letter. 

I  have  received  of  Monsieur  Cazeau  the  sum  of  thirteen  francs  49 
centimes,  ($2  65,)  for  the  following  instruments  (actes)  prepared  at 
his  request,  to  wit  :  the  1st,  containing  a  revocation  of  the  power  of 
attorney  executed  by  him  to  Mr.  Corbeaux,  the  19th  of  April,  1808  ; 
2d,  the  denunciation  of  the  latter  to  the  notary,  dated  the  22d  of  the 
same  month  ;  and,  3d,  a  citation  to  M.  Corbeaux,  dated  the  2d  of  the 
May  following,  by  virtue  of  which  I  authorize  and  request  Monsieur 
Lebon,  advocate,  to  whom  I  have  passed  these  instruments,  on  the 
26th  of  July  last,  with  a  copy  of  the  power  of  attorney  executed  by 
Mr.  Cazeau  to  Corbeaux — that  he  (M.  Lebon)  will  be  pleased  to  have 
them  delivered  to  the  doorkeeper  of  the  prefect.  At  Paris,  this  26th 
of  January,  1809. 

MRE.  THILLE. 

The  letter  is  addressed  to  Madame  John  Reeves,  merchant,  Faux- 
bourg St.  Lawrence,  Montreal,  Canada,  via  New  York. 


IN  THE  COURT  OF  CLAIMS. 

ON  REARGUMENT  OF  THE  PETITION  OF  THE  REPRESENTATIVES  OF  FRANCIS 

CAZEAU,  DECEASED. 

Brief  of  United  States  Solicitor. 

The  claim  is  that  the  deceased  was  defrauded  of  his  rights  against 
the  government  by  one  Corbeaux,  to  whom  three-fourths  of  it  was  as- 


28 


JACOB  BIGELOW. 


signed,  but  that  the  assignment  was  cancelled  before  the  money  was 
paid  by  the  government,  although  without  any  notice  that  such  can- 
cellation had  taken  place ;  but  as  the  government  paid  on  a  copy  of 
the  assignment,  there  was  an  irregularity  for  which  the  government 
should  be  deemed  to  have  had  notice  of  the  cancellation. 

Now,  if  we  assume,  for  the  sake  of  argument,  the  fact,  of  which  there 
is  not  a  tittle  of  proof,  that  such  cancellation  took  place,  and,  2d,  that 
the  payment  on  a  copy  was  in  itself  an  irregularity,  there  is  not  the 
least  logical  connexion  between  the  premises  and  the  conclusion  sought 
to  be  drawn  from  them.  No  laches  can  be  imputed  to  the  public. 
4  Mass.,  522 ;  3  Serg.  &  R.,  291 ;  4  Henn  &  M.,  57  ;  1  Penn.  R.,  476. 


Jacob  Bigelow,  Adm'r  of  Francis  Cazeau,  vs.  The  United  States. 
Judge  Blackford's  opinion. 

The  following  appears  to  be  the  history  of  this  case : 
The  intestate,  Francis  Cazeau,  had  certain  claims  against  the  United 
States,  which  accrued  during  the  war  of  the  revolution.  On  the  30th 
of  November,  1807,  at  the  city  of  Paris,  the  following  agreement 
respecting  said  claims  was  entered  into  between  said  Cazeau  and  one 
Francis  Corbeaux: 

"Whereas  Francis  Cazeau,  formerly  of  the  city  of  Montreal,  in  the 
province  of  Canada,  merchant,  now  of  the  city  of  Paris,  hath  just 
and  considerable  claims  upon  and  against  the  government  of  the 
United  States  of  America,  which  claims  consist  of  the  following  items, 
to  wit :  First,  the  amount  of  supplies  for  the  American  army  and 
other  disbursements  stated  in  a  certain  account  settled  and  approved 
by  William  Barber,  esq.,  the  commissioner  appointed  on  the  part  of 
Congress,  as  appears  by  his  report  thereon  bearing  date  the  twenty- 
seventh  day  of  July,  in  the  year  one  thousand  seven  hundred  and 
eighty-five.  Secondly,  for  moneys  actually  advanced  during  the 
seven  years  of  the  independence  war,  from  the  year  one  thousand 
seven  hundred  and  seventy-five  to  the  year  one  thousand  seven  hun- 
dred and  eighty-two,  inclusively,  which  advances  were  by  the  said 
Francis  Cazeau  made  in  his  capacity  as  a  political  and  secret  agent, 
appointed  and  authorized  by  the  American  and  French  governments. 
Thirdly,  for  losses  which  the  said  Francis  Cazeau  did  actually  sustain, 
both  by  the  confiscating  and  plundering  of  his  estate,  effects,  and 
other  property,  by  the  British,  in  consequence  of  the  active  part  he 
had  taken  in  the  political  affairs  of  the  United  States  during  the 
independence  war ;  which  he  did  at  the  pressing  solicitation  of  the 
American  and  French  governments,  and  under  the  solemn  promise 
that  said  governments  would  fully  compensate  and  indemnify  him, 
the  said  Francis  Cazeau,  for  the  loss  of  the  property  alluded  to. 
Fourthly,  for  an  indemnity  due  to  the  said  Francis  Cazeau,  on  ac- 
count of  the  utter  dissolution  and  ruin  of  his  commercial  establish- 
ments and  very  extensive  line  of  business  and  industry,  this  loss  be- 


JACOB  BIGELOW. 


29 


ing  also  the  result  of  the  said  Francis'  proscription  by  the  British 
government,  owing  to  the  services  he  had  rendered  to  the  United  States*, 
Fifthly,  the  said  Francis  Cazeau's  pay  as  a  coraraissioned  colonel  in 
the  American  army  during  seven  years,  to  which  must  be  added 
both  the  allowance  of  five  years'  pension  and  the  grant  of  lands  made 
by  law  to  officers  of  the  said  rank.    Sixthly,  the  amount  of  the  un- 
avoidable expense  which  the  said  Francis  Cazeau  hath,  during  these 
four  and  twenty  years  past,  been  put  to  in  the  lawful  though  hitherto 
unsuccessful  prosecution  of  his  just  claims  upon  the  government  of 
the  United  States.     Seventhly,  the  amount  of  interest  upon  the 
advances  above  mentioned  and  other  sums  withheld  from  him  by  the 
said  government,  which  interest  is  calculated  from  the  day  the  above 
items  became  due,  respectively,  down  to  the  thirty -first  day  of 
December  next,  and  at  the  rate  of  six  per  centum  per  annum,  being 
the  legal  rate  in  the  United  States  :  the  whole  of  which  items  amount 
to  the  sum  of  two  millions  eight  hundred  and  one  thousand  two 
hundred  and  fifty-one  dollars  forty  eight  cents,  lawful  money  of  the 
United  States  of  America  :  equal  to  fifteen  millions  one  hundred 
and  twenty-six  thousand  seven  hundred  and  fifty-eight  livres  tour- 
nois,  or  to  fourteen  millions  nine  hundred  and  forty  thousand  seven 
francs  and  ninety  centimes,  the  present  money  of  France  ;  as  will 
more  fully  appear  by  a  certain  schedule,  being  a  detailed  statement 
and  account  of  the  said  claims,  certified,  sworn  to.  and  subscribed, 
on  the  day  of  the  date  hereof,  by  the  said  Francis  Cazeau  :  and 
whereas  the  said  Francis  Cazeau  did  never,  either  by  himself  or  by 
any  one  acting  for  him,  or  under  his  authorization,  receive  either 
from  the  government  of  France  or  from  that  of  America,  any  kind  of 
payment  or  satisfaction  whatever,  so  that  he  remains  to  this  day  a 
lawful  creditor  of  the  government  of  the  United  States  to  the  above 
mentioned  full  amount  of  two  millions  eight  hundred  and  one  thou- 
sand two  hundred  and  fifty-one  dollars  forty-eight  cents,  including 
the  interest  up  to  the  close  of  the  present  year,  as  aforesaid  ;  and 
whereas,  by  the  last  accounts  the  said  Francis  has  received  upon  that 
subject,  it  appears  that  the  Congress  of  the  United  States  did,  on  or 
about  the  ninth  of  April,  in  the  year  one  thousand  eight  hundred 
and  two.  come  to  a  resolution,  the  purport  of  which  was  to  adjourn 
the  claim  of  the  said  Francis,  relative  to  the  said  demands,  unto  the 
third  Monday  in  the  month  of  November  then  ensuing,  for  further 
consideration ;  since  which  information  the  said  Francis,  owing,  with- 
out doubt,  to  the  difficulties  of  the  maritime  war,  has  heard  no  more 
about  his  claims  aforesaid  ;  and  whereas  the  said  Francis'  unfavorable 
circumstances  make  it  a  material  object  for  him  to  have  so  valuable 
and  just  a  claim  properly  managed  and  attended  to,  and  inasmuch  as 
his  old  age  and  bad  state  of  health  make  it  impracticable  for  him  to 
attend  personally  to  the  same  :  Xow,  this  agreement,  indented  of  two 
parts,  made  and  concluded  between  the  said  Francis  Cazeau  on  the 
one  part,  and  Francis  Corbeaux.  junior,  of  the  city  of  Paris,  gentleman, 
on  the  other  part,  witnesseth,  that  for  and  in  consideration  of  the 
sum  of  one  million  and  two  hundred  thousand  francs  unto  him,  the 
said  Francis  Cazeau.  well  and  truly  in  hand  paid  by  the  said  Francis 


30 


JACOB  BIGELOW. 


Corbeaux,  junior,  previous  to  and  before  the  sealing  and  delivering 
of  these  presents,  the  receipt  whereof  the  said  Francis  Cazeau  doth 
hereby  acknowledge,  and  thereof  and  therefrom  doth  acquit  and  dis- 
charge the  said  Francis  Corbeaux,  junior,  his  heirs,  executors,  admin- 
istrators, and  assigns,  and  every  one  of  them,  by  these  presents,  as 
well  as  from  various  other  good  causes  and  reasons  him,  Francis  Ca- 
zeau, thereunto  moving,  he,  the  said  Francis  Cazeau,  hath  conveyed, 
sold,  bargained,  set  over,  and  assigned,  as  he  doth  hereby  convey, 
sell,  bargain,  set  over,  and  assign  unto  the  said  Francis  Corbeaux, 
junior,  his  heirs,  executors,  administrators,  or  assigns  forever,  three 
full  quarter  parts  of  the  whole  of  the  above  recited  claims  or  demands 
upon  the  said  government  of  the  United  States  of  America,  amounting, 
as  aforesaid,  to  the  whole  sum  of  two  millions  eight  hundred  and 
one  thousand  two  hundred  and  fifty-one  dollars,  forty-eight  cents, 
the  interest  thereon  up  to  the  close  of  the  present  year  being  therein 
included,  and  generally,  three  full  quarter  parts  of  all  and  every 
the  right,  title,  interest,  use,  possession,  claim,  and  demand,  what- 
soever, which  he,  the  said  Francis  Cazeau,  now  hath,  or  may  or  in 
an}Twise  ought  to  have,  of,  in,  or  unto  or  for  the  above  recited  demands 
or  claims  upon  or  against  the  said  government  of  the  United  States  of 
America,  their  officers,  citizens,  and  territories  ;  the  meaning  and  in- 
tention of  the  said  Francis  Cazeau  being  hereby  to  assign,  convey, 
and  set  over,  unto  the  said  Francis  Corbeaux,  junior,  his  heirs,  execu- 
tors, administrators,  and  assigns,  three  full  quarter  parts  of  all  claims 
and  demands  he,  the  said  Francis  Cazeau,  may  or  ought  to  have  upon 
and  against  the  United  States  of  America,  or  of  what  may  be  re- 
covered thereon,  now  excepted  and  reserved  ;  to  have  and  to  hold 
the  said  three  full  quarter  parts,  together  with  the  interest  that  may 
accrue  thereon,  and  everything  incident  thereto,  unto  the  said  Francis 
Corbeaux,  junior,  his  heirs,  executors,  administrators,  and  assigns  for- 
ever, as  their  lawful  due  and  property,  and  for  their  sole  use  and 
benefit ;  and  it  is  further  agreed  between  the  parties  to  these  presents, 
that  the  said  three  full  quarter  parts  so  conveyed  and  assigned  shall 
be  so  understood  as  to  be  three  quarter  parts  of  what  may  be  recovered 
from  the  said  government  of  the  United  States  of  America,  be  the 
same  more  or  less  than  the  three  quarters  of  the  above-mentioned 
sum  of  two  millions  eight  hundred  and  one  thousand  two  hundred 
and  fifty-one  dollars  forty-eight  cents  ;  the  stating  of  said  sum  being 
intended  only  as  an  estimate,  and  not  to  operate  against  either  of  the 
parties,  so  that  none  shall  have  any  kind  of  recourse  or  remedy  against 
the  other,  should  the  full  amount  recovered  be  more  or  less  than 
the  stated  sum  of  two  millions  eight  hundred  and  one  thousand  two 
hundred  and  fifty-one  dollars  forty-eight  cents,  or  should  nothing 
be  recovered  at  all,  the  true  intent  and  meaning  of  these  presents 
being  that  the  said  Francis  Corbeaux,  junior,  his  heirs,  executors, 
administrators,  and  assigns,  shall  be  entitled  to  or  receive  only  three 
full  quarter  parts  of  what  shall  be  recovered  from  the  government 
aforesaid  ;  and  it  is  further  agreed  between  the  parties,  that  the 
better  to  insure  the  settlement  and  recovery  of  said  claims,  the  said 
Francis  Corbeaux,  junior,  shall  be  fully  and  irrevocably  empowered 


JACOB  BIGELOW. 


31 


to  act  both  in  his  own  behalf,  and  in  behalf  of  the  said  Francis  Cazeau, 
his  heirs,  executors,  administrators,  and  assigns  ;  wherefore  he,  the 
said  Francis  Cazeau,  for  himself,  his  heirs,  executors,  administrators 
and  assigns,  hath  made,  constituted,  and  appointed,  as  he  doth  hereby 
make,  constitute,  and  appoint,  the  said  Francis  Corbeaux,  junior,  his 
heirs,  executors,  administrators,  and  assigns,  to  be  his  true  attorney  or 
attorneys,  irrevocable  as  far  as  regards  the  three  quarter  parts  hereby 
assigned  for  him,  the  said  Francis  Cazeau,  for  his  use  and  benefit,  in 
his  name  and  behalf,  as  far  as  regards  the  one  quarter  part  of  said 
claims  not  assigned  and  conveyed  by  these  presents,  and  as  to  what 
regards  the  said  three  full  quarter  parts  presently  assigned  and  con- 
veyed, for  the  proper  use  and  benefit  of  himself,  the  said  Francis 
Corbeaux,  junior,  his  heirs,  executors,  administrators,  and  assigns,  to 
ask,  demand,  sue  for,  and  by  all  lawful  ways  and  means  recover  and 
receive,  of  and  from  the  United  States  of  America,  their  government 
and  officers,  of  and  from  whomsoever  it  may  appertain,  all  such  sum 
or  sums  of  money  or  other  effects  of  any  nature  whatsoever,  as  may 
be  due,  owing,  payable,  detained  from  or  belonging  to  the  said  Francis 
Cazeau,  for  the  whole  or  any  of  the  above  recited  reasons  and  mo- 
tives ;  and  to  that  end,  with  whomsoever  it  doth,  shall  or  may  con- 
cern, to  account  and  to  view,  state,  settle  and  adjust  all  and  every 
account  and  accounts  respecting  the  premises,  and  the  balance  or 
balances  to  receive,  and  upon  the  recovery  and  receipt  thereof,  in  due 
form  of  law  to  execute  and  deliver  requisite  and  sufficient  receipts, 
releases,  and  acquittances  ;  also  to  sell,  assign,  and  transfer  unto  any 
person  or  persons  the  whole  or  any  part  of  such  estates,  public  stocks, 
or  other  effects  as  may  be  given  in  payment  for  the  whole  or  for  part 
of  the  demands  aforesaid,  and  for  that  purpose  to  make,  seal,  and  exe- 
cute all  necessary  deeds,  conveyances,  acts  of  assignment  and  transfer, 
or  any  other  instruments  that  may  be  relative  thereto,  endorse  all 
notes  of  hand  and  bills  of  exchange  drawn  to  the  order  of  the  said 
Francis  Cazeau  ;  also,  if  need  be,  to  appear  before  all  judges  and  jus- 
tices in  any  court  or  courts  of  law  or  equity,  or  other  competent  tri- 
bunal or  tribunals  whatsoever  and  wheresoever,  there  to  do,  say, 
pursue,  implead,  give  in  memorials  and  petitions,  arrest,  attach,  and 
prosecute,  as  occasion  shall  be  or  require  ;  also  to  compound,  compro- 
mise, conclude,  and  agree  for  the  same  by  arbitration  or  otherwise,  as 
shall  be  thought  fit  and  most  beneficial,  with  power  also  of  substitution 
and  revocation,  and  generally  in  and  about  the  premises  to  do,  exe- 
cute, and  perform  all  and  whatsoever  shall  be  needful  and  requisite, 
as  fully,  absolutely  and  effectually,  to  all  intents  and  purposes,  as  the 
said  Francis  Cazeau  might  or  could  do  by  being  personally  present, 
and  to  have  done  the  same  ;  hereby  allowing,  ratifying  and  confirm- 
ing all  and  whatsoever  shall  or  may  be  lawfully  done  by  virtue  hereof ; 
and  it  is  further  agreed  by  and  between  the  parties  to  these  presents, 
that  in  case  the  payment  to  be  made  by  the  United  States  of  America 
should  take  place  partly  in  specie,  and  the  surplus  in  real  estates, 
stocks,  or  other  effects,  the  said  three  quarter  parts  hereby  assigned 
and  conveyed  shall  be  taken  proportionately  upon  every  article  or 
kind  of  payment  so  received,  so  that  the  assignor  and  assignee  shall 


32 


JACOB  BIGELOW. 


therein  share  according  to  their  respective  interest  in  the  whole 
claim  or  demand  ;  and  inasmuch  as  the  joint  prosecution  of  said  re- 
spective interests  maybe  necessary  or  useful  to  the  recovering  of  the 
part  hereby  assigned,  it  is  further  agreed  between  the  said  parties 
that  in  case  the  said  Francis  Cazeau,  his  heirs,  executors,  administra- 
tors, or  assigns,  should  at  any  time  previous  to  the  settlement  and 
recovery  of  the  claims  alluded  to  revoke  or  annul  the  whole  or  part  of 
the  above  granted  powers  relative  to  his  interest  not  assigned  by  these 
presents,  then,  and  in  consideration  of  the  above,  the  said  Francis  Ca- 
zeau, his  heirs,  executors,  administrators,  and  assigns  shall,  for  so 
doing,  forfeit  a  penalty  of  twenty  thousand  dollars,  money  of  the 
United  States,  to  the  said  Francis  Corbeaux,  junior,  his  heirs,  executors, 
administrators,  and  assigns,  to  be  by  them  levied  and  recovered  by 
way  of  execution  or  other  lawful  ways  ;  provided,  nevertheless,  that  in 
case  the  said  revocation  of  powers  should  take  place,  and  it  were  im- 
practicable for  the  said  Francis  Corbeaux,  junior,  to  prosecute  sepa- 
rately for  the  interest  hereby  assigned  unto  him,  so  as  to  have  the 
whole  claimed  and  recovered  by  the  said  Francis  Cazeau  or  those  acting 
under  him,  then  the  said  Francis  Cazeau,  his  heirs,  executors,  admin- 
istrators, or  assigns,  shall  be,  as  they  are  hereby,  held  and  bound 
unto  the  said  Francis  Corbeaux,  junior,  his  heirs,  executors,  adminis- 
trators, or  assigns,  to  account  for  the  said  three  full  quarter  parts  here- 
by assigned  of  whatever  shall  or  may  be  recovered  upon  the  claims  and 
demands  aforesaid,  either  directly  or  indirectly,  in  the  same  kinds 
and  effects  proportionately  as  may  be  received,  which  three  quarter 
parts  the   said  Francis  Cazeau  hereby  binds  himself,   his  heirs, 
executors,  administrators,  and  assigns,  in  the  said  case,  to  pay  or 
cause  to  be  paid  on  demand  unto  the  said  Francis  Corbeaux,  junior, 
his  heirs,  executors,  administrators,  and  assigns  ;  and  it  is  further 
agreed  between  the  parties  that  the  said  Francis  Corbeaux,  junior, 
shall  alone  bear  the  whole  charges  and  expenses  relative  to  the 
joint  prosecution  of  said  claims,  so  that  the  said  Francis  Cazeau,  his 
heirs,  executors,  administrators,  and  assigns,  shall  be  entitled  to  and 
actually  receive  the  one  quarter  part  hereby  reserved  clear  of  all  the 
said  expenses  and  charges  ;  provided,  nevertheless,  and  it  is  hereby 
agreed  between  the  parties,  that  the  said  Francis  Corbeaux,  junior, 
shall  have  it  in  his  power,  and  is  hereby  authorized,  in  order  to  effect 
said  prosecution,  to  employ  and  resort  to  such  means  as  he  may  think 
useful  and  proper,  none  excepted  or  reserved,  without  it  being  in  the 
said  Francis  Cazeau' s  power  to  prevent,  impede,  or  disapprove  of  the 
use  of  said  means  when  fairly  resorted  to  or  employed,  whatever  the 
result  of  the  same,  contrary  to  the  said  Francis  Corbeaux,  junior's, 
meaning  and  expectation,  might  be.    Finally,  it  is  hereby  averred  and 
declared  by  the  said  Francis  Cazeau,  that  he  hath,  either  by  himself 
or  by  any  other  person  or  persons  acting  under  him,  or  by  virtue  of 
his  authorization,  never  clone,  suffered,  authorized,  or  attempted  any 
matter  of  act,  confession,  instrument,  or  proceeding  whatsoever,  by 
which  the  whole  or  any  part  of  the  above  mentioned  claims,  and  spe- 
cially the  share  thereof  hereby  assigned  and  conveyed,  might  be  im- 
peded, objected  to, rejected,  defeated, or  debarred;  and  the  said  Francis 


JACOB  BIGELOW. 


33 


Cazeau  further  covenants,  promises,  and  binds  himself,  his  heirs  execu- 
tors administrators,  and  assigns,  unto  the  said  Francis  Corbeaux,  junior, 
his  heirs,  executors,  administrators,  and  assigns,  by  these  presents, 
that  neither  he  nor  they  nor  any  of  them  shall  ever  do,  suffer,  authorize, 
'  or  attempt  any  act  that  may  tend  to  the  same  effect. 

"  In  testimony  of  the  whole  of  which,  the  said  Francis  Cazeau  and 
Francis  Corbeaux,  junior,  have  hereunto  interchangeably  affixed  their 
hands  and  seals,  in  the  city  of  Paris,  on  the  thirtieth  day  of  November, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seven. 
u  Executed,  sealed,  and  delivered  in  the  presence  of  us, 

"  SIM.  CARMICHAEL, 
"N.  M.  DELAGRANGE, 
"  FRS.  CAZEAU,  [seal.] 
"  FRAS.  CORBEAUX,  Jr.  [seal.]  " 

w  Be  it  known  that  on  the  thirtieth  day  of  November,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seven,  and  of  the 
American  Independence  the  thirty-second,  before  me,  Pulwar  Skip- 
with,  commercial  agent  of  the  United  States  of  America  at  Paris,  and 
agent  for  prize  causes,  personally  came  and  appeared  Francis  Cazeau, 
formerly  of  the  city  of  Montreal,  in  the  province  of  Canada,  merchant, 
now  of  the  city  of  Paris,  and  Francis  Corbeaux,  junior,  of  the  same 
city,  gentleman,  who  did  respectively  acknowledge  the  above  instru- 
ment to  be  their  free  act  and  deed,  and  severally  executed  it  as  such 
in  my  presence  and  that  of  the  above  written  witnesses. 

"  In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 
my  seal  of  office  at  Paris,  aforesaid,  on  the  day  and  year  first  above 
written. 

"  FUL  WAR  SKIP  WITH,    [seal.]  " 

Immediately  after  the  execution  of  said  agreement,  and  on  the 
same  day,  the  parties  executed  another  agreement  as  follows  : 

"  We,  the  undersigned,  Francis  Cazeau,  of  the  one  part,  and 
Francis  Corbeaux,  junior,  of  the  other  part : 

"  In  pursuance  of  an  act,  under  private  signature,  passed  between 
us  this  day,  making  cession  and  transfer,  by  the  said  Sieur  Cazeau, 
to  the  said  Sieur  Corbeaux,  of  three-quarters  interest  in  the  credits 
and  claims  of  the  former  upon  the  government  of  the  United  States 
of  America  ;  this  transfer  being  made  for  the  gross  purchase  money 
of  twelve  hundred  thousand  francs,  which  have  been  paid  to  the  said 
Sieur  Cazeau  by  the  said  Sieur  Corbeaux  ;  and,  furthermore,  under  the 
other  conditions  which  are  expressed  in  the  said  act. 

"  To  the  end  that  all  difficulties  and  controversies  for  the  future 
may  be  prevented  whether  between  the  said  parties  or  between  one 
or  other  of  them  and  the  heirs  or  assigns  of  the  other  ;  or  finally, 
between  the  heirs  or  assigns  of  the  one  and  the  other  party  re- 
spectivel}T — difficulties  which  may  arise  from  a  false  interpretation  of 
their  contract,  or  of  some  one  of  its  clauses,  the  said  parties  have 
judged  it  proper  to  explain  more  particularly,  by  the  present  writing, 
their  will,  and  their  reciprocal  intentions,  and  consequently  they 
have  agreed  further  as  follows  : 

Mis.  Doc.  190  3 


34 


JACOB  BIGELOW. 


"  1st.  It  is  expressly  agreed  that  in  no  possible  case,  nor  under 
any  pretext  whatsoever,  may  either  the  one  or  the  other  of  the 
parties  to  the  aforesaid  contract  claim  to  annul  it ;  that  is  to  say, 
that,  on  the  one  hand,  whatever  may  be  the  event  or  the  success 
of  the  claims  of  the  Sieur  Cazeau  upon  the  government  of  the 
United  States,  or  whatever  may  be  the  incidental  circumstances 
which  may  supervene  relatively  to  this  object,  neither  the  Sieur  Cor- 
beaux  nor  his  heirs  or  assigns  may  claim  the  restitution  of  the  sum 
of  twelve  hundred  thousand  francs,  which  have  been  by  him  paid  to 
the  said  Sieur  Cazeau  for  the  price  of  the  cession  and  transfer  in  ques- 
tion, nor  of  any  part  of  that  sum.  The  whole  of  which  is  received 
from  this  moment  forever  and  definitively  by  the  said  Sieur  Cazeau, 
in  every  state  of  things  whatsoever.  And  that,  on  the  other  hand, 
the  three-quarters  interest  granted  and  transferred  by  the  Sieur  Ca- 
zeau to  the  Sieur  Corbeaux  in  the  aforesaid  credits  and  claims,  are 
equally  from  this  moment  and  forever  received  by  the  latter,  defini- 
tively, irrevocably,  and  likewise  in  every  state  of  things  whatsoever. 

"2d.  For  as  much  as  if  the  full  powers  conferred  by  the  said  Sieur 
Cazeau  upon  the  said  Sieur  Corbeaux,  to  the  effect  of  prosecuting  the 
liquidation  and  payment  of  the  credits  in  question,  should  fail  in  ful- 
filling their  object  from  any  cause  whatsoever,  which  may  be  attri- 
buted to  the  said  Sieur  Corbeaux,  injury  would  result  therefrom  to  the 
Sieur  Cazeau,  who  remains  proprietor  of  one-fourth  which  he  has  re- 
served to  himself  in  the  aforesaid  credits  ;  and  as  this  injury  would  be 
so  much  the  greater,  as,  by  the  fourth  article  of  their  aforementioned 
contract,  the  Sieur  Cazeau  has  deprived  himself  of  the  faculty  of  revok- 
ing the  said  powers,  under  the  penalty  of  an  indemnity  of  20,000 
piasters,  it  is  further  expressly  agreed  between  the  parties,  that  in 
case  two  successive  sessions  of  the  Congress  of  the  United  States 
(counting  from  the  first  which  shall  be  opened  after  the  date  of  these 
presents)  shall  pass  away,  without  the  definitive  liquidation  of  the 
credits  and  claims  of  the  Sieur  Cazeau  having  been  pronounced  and 
concluded  by  the  diligence  which  the  said  Sieur  Corbeaux  has 
bound  himself  to  contribute  to  this  result  as  promptly  as  possible, 
then  this  delay  having  fruitlessly  occurred,  the  Sieur  Cazeau  shall 
re-enter  upon  the  exercise  of  his  natural  rights,  and  may  revoke 
freely  and  at  all  times  the  powers  with  which  he  has  invested  the 
said  Sieur  Corbeaux ;  nor  shall  the  latter  or  his  heirs  or  assigns  ever 
recover  of  the  said  Sieur  Cazeau  the  stipulated  sum  of  20, 000  piasters, 
nor  any  other  indemnity  whatsoever  for  what  cause. 

"3d.  To  the  end  that  the  intention  with  which  the  6th  article  of 
the  aforementioned  contract  was  stipulated  between  the  parties,  un- 
dersigned, may  be  better  explained,  it  is  further  expressly  agreed  be- 
tween them  that  the  Sieur  Corbeaux,  invested  with  universal  powers, 
shall  likewise  employ  them,  as  far  as  it  may  depend  on  him,  in  pro- 
curing that  the  government  of  the  United  States  shall  place  at  the 
disposition  of  the  Sieur  Francois  Cazeau,  directly  and  in  France, 
the  amount  of  the  one-fourth  interest  reserved  by  the  latter  in  the 
proceeds  of  his  total  credits  upon  the  said  government. 

"Done  in  triplicate,  whereof  one  copy  is  retained  by  the  Sieur 


JACOB  BIGELOW. 


35 


Cazeau,  and  the  two  others  by  the  Sieur  Corbeaux,  at  Paris,  the  30th 
of  November,  1807. 

"The  writing  above,  and  on  the  preceding  pages,  approved. 

"FRANCNIS  CAZEAU. 

"Valid  as  the  acceptance  of  transfer  of  three-fourths  interest  in 
the  credits  of  Mr.  Cazeau  upon  the  United  States. 

-FRANCOIS  CORBEAUX,  Jr." 

On  the  20th  of  December,  1808,  some  person  (it  does  not  appear 
Avho)  obtained  from  Mr.  Warden,  then  American  consul  in  Paris,  a 
copy  of  Corbeaux' s  said  first  agreement  with  Cazeau  of  the  30th  of 
November,  1807.    The  consul's  certificate  to  the  copy  is  as  follows  : 

"I,  the  undersigned,  American  consul  and  agent  for  prize  causes 
at  Paris,  do  hereby  certify  that  the  above  instrument  of  writing  is  a 
true  and  faithful  copy  of  the  original,  executed  by  the  above-men- 
tioned individuals,  in  the  presence  of  the  witnesses  whose  names  are 
above  written,  and  in  that  of  my  predecessor,  Fulwar  Skipwith,  esq., 
as  attested  by  his  seal  and  signature  ;  and  the  said  original  instru- 
ment is  deposited  in  my  office,  and  was  there  registered  in  folio  1,  tli£ 
20th  day  of  November,  1808.  In  testimony  whereof,  I  have  hereunto 
set  my  hand  and  seal  this  20th  of  December,  in  the  year  of  our  Lord 
above  written,  and  33d  year  of  American  Independence. 

"DAVID  BAILIE  WARDEN. 

"Consulate  of  the  United  States  of  America,  Paris. 

In  1816,  Corbeaux  executed  a  power  of  attorney  to  James  Grubb, 
with  power  of  substitution,  to  collect  the  said  claims  against  the 
United  States,  one -fourth  for  Cazeau,  and  three-fourths  for  Corbeaux, 
and  Grubb  substituted  in  his  place  Josephus  B.  Stewart. 

In  1817,  Stewart  petitioned  Congress  on  the  subject  of  said  claims, 
and  Congress,  on  the  3d  of  March  of  that  year,  passed  the  following 
law : 

%iBe  it  enacted,  &c.,  That  the  sum  of  forty-two  thousand  seven 
hundred  and  thirty-seven  dollars  and  ninety-three  cents  be  paid,  out 
of  any  money  in  the  treasury  not  otherwise  appropriated,  to  the 
legal  representatives  of  Francis  Cazeau,  late  merchant  at  Montreal, 
or  to  his  or  their  assignee  or  attorney,  or  other  person  lawfully  en- 
titled to  receive  the  same,  in  full  compensation  for  all  claims  against 
the  United  States."— (6  Stat,  at  Large,  191.) 

Immediately  after  the  passage  of  said  act,  that  is,  in  March,  1817, 
Stewart,  having  satisfied  the  Treasury  Department  that  said  Corbeaux 
had  a  right  to  receive  from  the  United  States  said  $42,737  93,  and 
that  he,  Stewart,  had  authority  from  Corbeaux  to  receive  the  same, 
the  Secretary  of  the  Treasury  caused  the  whole  of  said  appropriation 
to  be  paid  to  Stewart. 

Subsequently,  Congress  was  applied  to  on  behalf  of  the  heirs  of 
said  Cazeau  for  the  payment  to  them  of  said  $42,737  93,  on  the 
ground  that  the  Secretary  of  the  Treasury  had  improperly  paid  that 
money,  in  1817,  to  the  attorney  in  fact  of  Corbeaux,  when,  as  was 
alleged,  the  claims,  for  the  payment  of  which  the  appropriation  in 


36 


JACOB  BIGELOW. 


that  year  was  made,  belonged  not  to  Corbeaux  but  to  the  heirs  of 
Cazeau. 

In  1836,  the  Solicitor  of  the  Treasury,  Mr.  Maxcy,  made  a  report 
to  the  Senate  in  favor  of  said  heirs  ;  but  the  Judiciary  Committee  of 
the  House  of  Representatatives,  in  1844,  refused  to  concur  in  that 
report,  except  as  to  one-fourth  of  the  claims.  The  reason  of  the 
opinion  of  the  committee  will  appear  when  I  come  to  notice  the  effect 
of  Cazeau7  s  death  (which  occurred  in  1815)  on  the  aforesaid  deed  of 
assignment.  In  accordance  with  the  opinion  of  the  committee,  the 
following  act  of  Congress  was  passed  in  June,  1844 : 

' '  Be  it  enacted,  &c,  That  the  sum  of  twenty-seven  thousand  three 
hundred  and  fifty-two  dollars  and  thirty-two  cents  be  paid,  out  of  any 
money  in  the  treasury  not  otherwise  appropriated,  to  the  legal  repre- 
sentatives of  Francis  Cazeau,  late  merchant  at  Montreal,  or  to  their 
legal  attorney,  or  other  person  lawfully  entitled  to  receive  the  same  : 
it  being  one-fourth  of  the  sum  appropriated  under  an  act  of  Congress 
approved  on  the  third  of  March,  one  thousand  eight  hundred  and 
seventeen,  with  interest  from  May,  one  thousand  eight  hundred  and 
eighteen.77 — (6  Stat,  at  Large,  915.) 

That  sum  of  $27,252  32  was  paid  at  the  treasury,  in  1844,  to  the 
present  claimant,  Jacob  Bigelow,  who  acted  then  as  he  does  now  as 
the  administrator  of  Cazeau7  s  estate. 

Mr.  Bigelow,  considering  that  Cazeau7  s  estate  was  entitled  not  only 
to  the  one-fourth  of  the  appropriation  of  1817,  which  he  has  received, 
but  also  to  the  other  three -fourths,  now  applies  to  this  Court  for  an 
allowance  of  said  three-fourths  of  the  appropriation,  with  interest. 

The  question  as  to  the  validity  of  this  claim  against  the  United 
States,  I  shall  now  proceed  to  examine. 

The  objection  made  by  the  United  States  to  this  claim  is,  that  they 
paid  the  money  in  1817  to  said  Corbeaux7s  attorney  ;  Corbeaux  being, 
at  the  time,  the  owner  of  the  claim. 

The  claimant  denies  that  Corbeaux  had  a  right  to  receive  the  money 
so  paid. 

The  act  of  Congress  of  1817,  making  the  appropriation  of  $42, 737  93 
is  copied  into  this  opinion.  The  act  directs  the  money  to  be  paid 
"to  the  legal  representatives  of  Francis  Cazeau,  late  merchant  of  Mon- 
treal, or  to  his  or  their  assignee  or  attorney  or  other  person  entitled 
to  receive  the  same.77 

The  two  agreements  of  the  30th  of  November,  1807,  between  Ca- 
zeau and  Corbeaux,  under  which  Corbeaux7  s  attorney  received  the 
money  from  the  treasury,  are  also  copied  into  this  opinion.  Their 
meaning,  taken  them  together,  as  they  must  be  taken,  is  as  follows  : 

Cazeau,  in  consideration  of  twelve  hundred  thousand  francs,  sold 
and  assigned  to  Corbeaux  all  his,  Cazeau7  s,  interest  in  three-fourths 
of  said  claims,  and  empowered  Corbeaux  to  collect  the  same  for  his 
own  use.  Cazeau  retained  his  interest  in  the  remaining  one -fourth 
as  his  own  property,  empowering  Corbeaux  to  collect  that  one-fourth 
for  him,  Cazeau.  If  Cazeau  should  revoke  the  power  as  to  his  one- 
fourth,  he  was  to  forfeit  to  Corbeaux  a  penalty  of  $20,000,  unless 


JACOB  BIGELOW. 


37 


before  such  revocation,  two  sessions  of  Congress  had  passed  away 
without  a  settlement  of  the  claims. 

The  claimant  contends,  on  various  grounds,  that  Cazeau's  said  deed 
of  assignment  of  three-fourth  parts  of  said  claims  to  Corbeaux,  in  1807, 
was  uot  binding  on  Cazeau's  heirs  in  1817,  when  the  money  now 
sued  for  was  paid  at  the  treasury  to  Corbeaux7  s  attorney. 

It  is  contended,  in  the  first  place,  that  said  deed  of  assignment  was 
obtained  by  fraud.  There  is  no  proof  whatever  of  this  objection  ;  and 
if  there  were,  it  would  not  effect  the  case.  Fraud  does  not  render  a 
contract  void,  but  only  voidable  at  the  election  of  the  party  defrauded. 
(Per  Parke,  Baron,  in  Murray  vs.  Mann  ;  2  Welsb.,  Hurls.,  &  Gor- 
don, 538.) 

And  even  if  the  assignment  had  been  fraudently  obtained  by  Cor- 
beaux, there  is  no  evidence  that  the  Secretary  of  the  Treasury,  who 
paid  the  money  to  Corbeaux' s  attorney,  had  any  notice  of  the  fraud, 
and  that  is  of  itself  a  complete  answer  to  the  objection. 

It  is  further  objected,  that  previously  to  the  payment  at  the  trea- 
sury, in  1817.  to  Corbeaux' s  attorney,  of  the  $42,737  93,  Cazeau  had 
revoked  his  power  of  attorney  to  Corbeaux.  The  only  evidence  relied 
on  of  such  revocation  is  a  paper  having  the  signature  of  "lire  Thille," 
which  paper  is  as  follows  : 

"I  have  received  of  Monsieur  Cazeau  the  sum  of  thirteen  francs 
49  centimes,  ($2  65,)  for  the  following  instruments  (actes)  prepared 
at  his  request,  to  wit  :  The  first,  containing  a  revocation  of  the  power 
of  attorney  executed  by  him  to  Mr.  Corbeaux  the  19th  of  April,  1808  ; 
2d,  the  denunciation  of  the  latter  to  the  notary,  dated  the  22d  of  the 
same  month;  and  3d,  a  citation  to  M.  Corbeaux,  dated  the  2d  of  the 
May  following,  by  virtue  of  which  I  authorize  and  request  Monsieur 
Lebon,  advocate,  to  whom  I  have  passed  these  instruments  on  the 
26th  of  July  last,  with  a  copy  of  the  power  of  attorney  executed  by 
Mr.  Cazeau  to  Corbeaux,  that  he  (M.  Lebon)  will  be  pleased  to  have 
them  delivered  to  the  door-keeper  of  the  perfect.  At  Paris,  this 
26th  of  January,  1809. 

"MRE  THILLE." 

This  paper  of  Thille' s  is  attached  to  a  letter  of  Cazeau's  of  the 
30th  of  November,  1808,  to  his  children,  and  is  a  mere  receipt  to  Ca- 
zeau for  a  trifling  fee  for  preparing,  among  other  papers,  a  revoca- 
tion of  a  power  of  attorney  from  Cazeau  to  Corbeaux  of  the  19th  of 
April.  1808.  This  receipt,  the  execution  of  which  is  not  proved, 
does  not  state  or  profess  to  state  that  the  revocation  mentioned  in  it 
had  been  executed  by  Cazeau.  Besides,  no  revocation  by  Cazeau 
could  affect  said  assignment  of  the  three-fourths  of  the  claims  as  will 
be  presently  shown. 

The  claimant  contends  that  the  power  of  attorney  was  to  continue 
only  during  the  two  next  sessions  of  Congress,  but  in  that  he  appears 
to  be  mistaken.  I  have  already  expressed  my  opinion  as  to  the  mean- 
ing of  the  deed  of  assignment  of  the  30th  of  November,  1807,  and 
of  the  explanatory  agreement  of  the  same  date.  I  consider  the  pro- 
per and  legal  construction  of  those  two  instruments,  on  this  point,  to 
be  as  before  stated,  namely,  that  in  case  Cazeau  should  revoke  the 


38 


JACOB  BIGELOW. 


power  as  to  his  one-fourth,  he  should  forfeit  $20,000,  unless,  be- 
fore such  revocation,  two  sessions  of  Congress  had  passed  away  with- 
out the  claims  being  settled.  The  reason  of  the  penalty  was,  no 
doubt,  this  :  Corbeaux  paid  a  large  sum.  $200,000,  for  the  three-fourths 
of  the  claims.  It  might  be  that  the  United  States  would  require  the 
whole  of  the  claims  to  be  settled  at  the  same  time,  and  with  one  per- 
son ;  and  it  might  therefore  prejudice  Corbeaux,  if  Cazeau  should  re- 
voke the  power  as  to  his,  Cazeau' s,  one-fourth;  hence  the  insertion 
of  the  penalty  of  S20.000  in  case  of  such  revocation  ;  but,  at  the  same 
time,  should  the  then  next  two  sessions  of  Congress  pass  away  with- 
out a  settlement  of  the  claims,  Cazeau  took  care  to  provide  that  he 
might  revoke  the  power  as  to  his  own  one-fourth  without  incurring 
said  penalty. 

The  petition  alleges  that,  in  April,  1808,  Cazeau  instituted  criminal 
proceedings  against  Corbeaux,  in  consequence  of  which  the  said  assign- 
ment was  annulled.  But  there  is  no  evidence  whatever  of  the  annul- 
ment of  said  assignment.  Cazeau' s  said  letter  of  the  30th  of  Novem- 
ber. 1808.  to  his  children,  says  that  he  had  brought  Corbeaux  before 
the  criminal  court,  and  that  his  authority  to  him,  Corbeaux,  would  be 
annulled.  This  letter  of  Cazeau' s,  were  it  even  proved  to  be  genuine, 
would  not  be  admissible  evidence  in  this  suit  by  his  administrator. 
It  is  not  even  sworn  to.  But  this  letter,  itself,  expressly  alleges 
that  the  case,  whatever  it  was.  had  not  then  been  decitfoJ. 

The  claimant  produces  another  paper  to  show  said  criminal  pro- 
ceeding against  Corbeaux.    That  paper  is  as  follows  : 

''In  the  year  1808,  on  the  1st  day  of  July,  at  the  request  of  M. 
Francois  Corbeaux,  jr,  residing  in  Paris,  at  No.  19,  street  de  la  Sour- 
diere,  whose  domicil  is  fixed  by  his  choice  in  the  dwelling-house  of 
the  undersigned  huissier,  [officer  of  justice,]  we,  the  undersigned, 
Simon  Deligneul,  huissier  audiencier  [officer  who  superintends  the 
arrangements  of  a  court]  of  the  court  of  appeal,  residing  in  Paris,  at 
No.  41,  street  and  division  des  Lombards,  commissioned  on  the  30th 
of  March  last,  did  signify  and  declare  to  M.  Francois  Cazeau,  formerly 
a  merchant  at  Montreal,  in  Canada,  and  now,  as  it  appears  from  the 
summons  given  at  his  request,  on  the  2d  of  May  last,  to  the  said  Cor- 
beaux by  Matthew  Thille.  huissier,  dwelling  in  Paris,  at  No.  21,  street 
de  Yerneuil,  where  we  proceeded,  and  being  there,  did  address  him 
in  person  to  the  following  effect : 

1 1  That  the  said  Corbeaux,  although  he  does  not  mean  to  approve 
in  any  manner  whatsoever  the  said  summons,  nor  to  admit  the  ap- 
proval of  it  by  the  said  M.  Cazeau  himself,  as  there  does  not  appear 
to  have  been  any  authority  for  it  on  the  part  of  the  latter,  nor  the 
pretended  recall  of  the  power  given  by  him  previously  to  the  said 
Corbeaux  before  several  notaries,  and  drawn  up,  as  this  huissier  says, 
on  the  19th  of  April  last,  through  his  official  agency,  at  the  request 
of  the  said  Cazeau,  and  delivered  to  him,  the  said  Corbeaux  ;  but 
simply  to  prove  to  the  said  Cazeau  that  he  does  not  intend  to  appro- 
priate to  himself  nor  to  retain  his  papers  without  order  or  account,  as 
they  do  not  at  all  interest  the  said  Corbeaux,  but  concern  the  said 
Cazeau,  who  had  asked  the  said  Corbeaux  confidentially  and  volun- 


JACOB  BIGELOW. 


39 


tarily  to  keep  them  at  his  house,  without  any  obligation  on  his  part 
to  answer  for  them  either  verbal  or  in  writing,  but  only  with  the 
persuasion  that  the  said  M.  Cazeau  might  withdraw  them  from  the 
domicil  of  the  said  Corbeaux,  in  which  he  had  placed  them  of  his  own 
accord. 

"That  the  said  M.  Corbeaux  now  really  offers  to  the  said  Cazeau 
sixteen  documents,  of  which  the  first,  dated  April  28,  1778,  contains 
an  acknowledgment  before  the  notaries  of  Quebec,  at  the  residence, 
Montreal,  for  the  sum  of  nine  thousand  livres,  by  M.  Fondre  Fran- 
cois Odelin,  residing  at  La  Tortue,  in  the  parish  of  St.  Pierre,  near 
the  Prairie  de  la  Madelaine  ;  the  second  is  a  note  to  order,  in  form  of 
a  promise  under  private  signature,  dated  the  9th  of  October,  1776, 
and  signed  by  the  said  Odelin,  in  favor  of  the  said  Cazeau,  for  the 
sum  of  nine  thousand  livres  which  he  had  passed  to  the  order  of 
Messrs.  Watson,  who  had  transmitted  it  to  M.  Debray  ;  the  third 
paper  is  a  notification  and  declaration  of  the  said  Debray,  holding  the 
order  of  the  said  Watson,  to  M.  Bagnolet  as  curateur  a  Vinterdiction 
[a  tutor  appointed  by  a  court  to  take  care  of  the  property  of  a  person 
insane  or  otherwise  incapable  of  managing  it  himself]  of  the  said 
Odelin,  served  by  Poulain,  a  huissier,  at  Amiens,  on  the  18th  of 
January,  1778  ;  the  fourth  is  a  notification  of  the  said  acte  of  acknow- 
ledgment of  the  nine  thousand  livres  above  mentioned,  served  at  the 
request  of  the  said  Cazeau  on  the  10th  of  January,  1778,  by  the  said 
Poulain  on  the  said  Bagnolet,  in  his  character  of  curateur  a  Vinterdie- 
tion of  the  said  Odelin,  who  subscribed  the  same  acknowledgment,  as 
appears  from  the  said  paper. 

4 'The  other  twelve  documents  are  copies  of  petitions,  statements, 
and  notes,  interesting  only  to  the  said  Cazeau,  without  any  connexion 
whatever  with  the  said  Corbeaux,  and  of  no  use  to  M.  Cazeau,  except 
as  affording  information  in  proof  of  the  debt  in  question,  which  he 
may  recover.  Which  sixteen  papers  have  been  by  us  first  numbered 
and  marked  properly,  and  then  ne  variatured. 

4  4  The  said  M.  Corbeaux  further  consents  that  the  documents  de- 
posited by  himself  and  M.  Cazeau  in  the  office  of  his  excellency  the 
minister  of  foreign  relations,  may  be  withdrawn  by  the  said  Cazeau 
within  any  period  which  he  may  consider  proper  ;  it  being  under- 
stood, however,  that  this  consent  given  by  M.  Corbeaux  is  not  to 
injure  or  affect  him,  and  that  all  his  pretensions  and  rights  are  to 
remain  entirely  preserved.  He,  moreover,  declares  that  several 
other  papers  have  been  long  since  restored  by  him,  the  said  Cor- 
beaux. not  only  to  M.  Cazeau,  but  also  to  other  third  persons,  from 
whom  lie  had  received  them  on  his  part ;  and  that  he  makes  express 
reservation  of  all  his  rights  arising  from  the  agreements,  which  the 
said  Cazeau  and  Corbeaux  have  previously  entered  into  ;  and  the 
latter  signed  this  paper  thus,  after  erasing  eighteen  words. 

44FRAS.  CORBEAUX,  Jr. 

44  Which  offers  were  made  to  M.  Cazeau  who  was  at  the  same  time 
required  to  give  a  complete  and  satisfactory  discharge  ;  whereupon 
he  replied  that  he  would  not  accept  a  part  of  his  papers,  without 


40 


JACOB  BIGELOW. 


having  the  whole  as  he  demanded.  On  being  summoned  to  sign,  he 
said  that  he  would  sign  nothing,  which  answer  we  have  considered 
as  a  refusal  to  receive  the  said  documents,  which  had  been  offered  to 
him,  and  to  give  the  said  Corbeaux  a  satisfactory  discharge  for  them. 

"Of  all  which,  we  have  made  and  drawn  up  this  present  state- 
ment, of  which  the  said  M.  Corbeaux  may  avail  himself  at  such  time 
and  place  as  he  may  consider  expedient  ;  and  we  have  given  to  M. 
Cazeau  this  present  copy,  after  having  been  employed  double  time 
on  it,  for  which  the  whole  cost  is  twelve  francs. 

"DELIGNEUL.77 

This  paper,  signed  "  Deligneul,77  shows  that  the  proceeding  de- 
scribed by  him,  and  referred  to  in  Thille's  said  receipt,  resulted  in 
nothing  ;  and  Cazeau7  s  said  letter  shows  that  several  months  after 
that  'proceeding,  the  case,  whatever  it  was,  remained  undecided. 

There  is  nothing  but  those  two  papers  relied  on  by  the  claimant, 
to  show  the  alleged  criminal  proceeding  to  which  he  refers  ;  and  it 
is  plain  that,  were  those  papers  admissible  as  evidence,  they  would 
afford  no  ground  whatever  from  which  to  infer  that  the  assignment 
had  been  annulled.  Indeed,  the  claimant's  counsel,  in  their  brief, 
admit  that  no  such  annulment  has  been  proved.  Their  language  is 
as  follows:  "Cazeau  did  proceed  against  Corbeaux  criminally  ;  but, 
as  appears  from  the  record  of  that  proceeding  on  file,  there  could  be 
no  order  for  cancellation  of  the  instrument  in  a  criminal  proceeding, 
but  it  was  probably  surrendered  in  consequence  of  that  proceeding.77 

It  is  further  objected  that,  at  the  time  of  the  payment  at  the  trea- 
sury to  Corbeaux' s  attorney,  in  1817,  of  the  $42,737  93,  Cazeau  was 
dead,  and  that  his  death  had  revoked  his  power  of  attorney  to  Cor- 
beaux to  collect  the  aforesaid  claims. 

It  must  be  recollected  that  one-fourth  of  the  amount  of  the  claims, 
though  paid  by  the  treasury  to  Corbeaux7  s  attorney,  in  1817,  was  paid 
over  again  in  1844,  at  the  treasury,  to  the  present  claimant,  Bigelow, 
as  administrator  aforesaid.  That  one-fourth  which  has  been  twice 
paid  by  the  United  States,  is  now  admitted  to  be  extinguished.  The 
present  claim  is  for  the  other  three-fourths,  which,  as  I  have  already 
stated,  was  regularly  and,  in  my  opinion,  bona  fide  assigned  in  1807 
by  Cazeau  to  Corbeaux  for  a  valuable  consideration.  The  power  of 
attorney  contained  in  that  assignment  of  said  three-fourths  was  a 
power  coupled  with  an  interest,  and  was,  therefore,  not  revocably  by 
Cazeau  in  his  lifetime,  nor  was  it  revoked  by  his  death.  Judge 
Story7 s  language  on  the  subject  is  as  follows  :  "In  the  case  of  an 
authority  coupled  with  a  vested  interest  in  the  thing,  we  have  already 
seen  that  it  is  not  extinguished  by  the  death  of  the  principal,  for  the 
very  reason  that  it  can  still  be  executed  in  the  name  of  the  agent,  he 
having  the  vested  legal  or  equitable  title  in  the  thing,  which  he  can 
transfer  or  change  by  his  own  act  as  owner.77 — (Story  on  Agency, 
section  496.)  That  principle  applies  to  the  case  before  us.  Here, 
the  express  assignment  by  Cazeau  to  Corbeaux  of  the  three-fourths, 
gave  the  latter  a  vested  interest  therein,  which  could  not  be  divested 
by  Cazeau  in  his  lifetime,  nor  by  his  death.    The  truth  is,  the  power 


JACOB  BIGELOW. 


41 


of  attorney,  as  to  the  three-fourths  now  sued  for,  was  inserted  in  the 
deed  of  assignment  from  abundance  of  caution.  That  assignment  of 
the  three-fourths  being  absolute,  required  no  power  of  attorney  to  aid 
it ;  and  the  power,  so  far  as  concerns  those  three-fourths,  is  mere 
surplusage. 

It  is  further  contended  that  the  deed  of  assignment  by  Cazeau  to 
Corbeaux  was  inoperative,  on  the  ground  that  such  claims  are  not  as- 
signable. But  it  is  clear,  that,  at  the  time  that  deed  was  executed, 
such  claims  against  the  government  were  assignable  ;  and  the  Su- 
preme Court  of  the  United  States  has  decided  them  to  be  so  over  and 
over  again.  In  a  very  late  decision,  the  court  speaks  as  follows  : 
;  1  And  as  respects  the  validity  of  assignments  of  claims  like  the  one 
here  presented,  [an  unliquidated  claim  of  an  individual  against  the 
government  of  Mexico,  ]  no  question  can  be  raised  at  this  day,  as  such 
assignments  have  been  recognized  by  the  various  boards  of  commis- 
sioners, and  the  courts  of  justice,  for  many  years." — (Judson  vs.  Cor- 
coran, 17  Howard,  614.) 

Again:  The  act  of  Congress  of  1817,  allowing  the  $42,737  93, 
directs  to  whom  the  money  should  be  paid,  namely,  "  to  the  legal 
representatives  of  Francis  Cazeau,  late  merchant  at  Montreal,  or  to 
his  or  their  assignee,  or  attorney,  or  other  person,"  &c. — (6  Stat,  at 
Large,  191.) 

Cazeau  being  then  dead,  this  act  expressly  authorizes  the  payment 
to  any  person  to  whom  Cazeau,  in  his  lifetime,  might  have  assigned 
the  claims. 

The  claimant  contends,  that  the  original  deed  of  assignment  to 
Corbeaux  was  surrendered  by  him  to  Cazeau  or  his  heirs,  before  the 
treasury  payment  to  Corbeaux' s  attorney  in  1817. 

There  is  no  direct  evidence  of  the  surrender,  but  the  claimant  at- 
tempts to  prove  it  by  circumstances. 

He  relies,  in  the  first  place,  on  a  part  of  the  report  of  Mr.  Maxcy, 
Solicitor  of  the  Treasury,  made  in  1836,  and  the  papers  referred  to  in 
the  report. 

Mr.  Maxcy' s  language  is  as  follows  : 
'  In  less  than  five  months  after  its  (the  assignment' s)  execution,  on 
the  19th  of  April,  1808,  he  (Cazeau)  revoked,  the  power  of  attorney, 
and  instituted,  in  the  May  following,  a  criminal  proceeding  against 
Corbeaux,  for  the  purpose  of  annulling  the  agreement  and  punishing 
him  for  his  fraud;  and  Corbeaux' s  answer  to  this  proceeding  shows 
that  he  surrendered  many  papers  delivered  to  him  by  Mr.  Cazeau. 
(See  letter  from  Mr.  Cazeau  to  his  grandson,  with  a  receipt  of  the 
bailiff,  Thille,  attached  thereto,  marked  A  A;  and  Corbeaux' s  answer, 
marked  B  B.)  This  proceeding  probably  ended  by  an  order  for  the 
surrender  of  the  assignment  and  power  of  attorney  to  Cazeau  and  the 
consequent  inaction  of  Corbeaux  under  it." 

It  will  be  observed,  that  the  only  papers  relied  on  by  Mr.  Maxcy 
for  considering  it  probable  that  a  criminal  proceeding  against  Corbeaux 
ended  in  an  order  for  the  surrender  of  the  deed  of  assignment  and 
power  of  attorney  to  Cazeau,  are  Cazeau' s  letter,  Thille' s  receipt,  and 
Corbeaux' s  answer  contained  in  the  paper  signed  ' '  Deligneul. ' '   I  have 


42 


JACOB  BIGELOW. 


already  had  occasion  to  examine  and  comment  on  those  papers,  and 
have  shown,  I  think,  that  they  furnish  no  ground  for  Mr.  Maxcy' 8 
conjecture. 

The  claimant  relies,  in  the  second  place,  to  show  a  surrender  of 
said  deed  of  assignment,  upon  what  he  considers  evidence  of  a  pos- 
session of  the  deed  by  Cazeau  or  his  heirs.  The  circumstances  relied 
on  to  show  such  possession  are  as  follows : 

First.  The  following  part  of  said  report  of  Mr.  Maxcy :  ' '  The 
original  papers  had,  in  fact,  been  sent  by  Cazeau,  as  early  as  1809,  to 
General  Mason,  of  Georgetown,  with  a  power  of  attorney  to  prefer 
his  claims  to  Congress.  While  General  Mason  was  awaiting  for  ad- 
ditional documents  from  Cazeau' s  grandson,  Mr.  Reeves,  of  Canada, 
the  late  war  with  Great  Britain  took  place,  when  it  was  not  deemed 
expedient  to  petition  Congress  for  money.  Immediately  after  the  war 
Cazeau  died  ;  and  General  Mason,  considering  his  power  of  attorney 
as  revoked  by  that  event,  took  no  steps  towards  the  recovery  of  the 
claim,  but  two  years  after  Cazeau' s  death,  on  the  application  of  Mr. 
Reeves,  of  Canada,  delivered  to  him  all  the  papers  in  his  possession, 
as  the  representative  of  his  grandfather's  family;  and  these  original 
papers  are  now  presented  to  the  Senate,  by  Mr.  Bigelow,  as  agent  of 
Cazeau' s  heirs. — (See  General  Mason's  letter,  E  E.) 

From  a  cursory  reading  of  the  last  above  extract  from  Mr.  Maxcy'  a 
report,  it  might  be  supposed  that,  in  speaking  of  Cazeau' s  original 
papers  in  General  Mason's  possession,  Mr.  Maxcy  meant  that  the 
original  deed  of  assignment  from  Cazeau  to  Corbeaux  was  one  of  those 
papers;  but  an  inspection  of  General  Mason's  letter,  which  is  all 
Mr.  Maxcy  here  refers  to,  will  show  that  that  is  not  Mr.  Maxcy' s 
meaning.  It  is  true  that  the  claimant,  Mr.  Bigelow,  states  in  the 
petition  that  said  deed  of  assignment  was  one  of  the  papers  in  Gen- 
eral Mason's  possession,  but  he  is  not  supported  by  that  letter.  Th^ 
following  is  a  copy  of  General  Mason's  letter: 

"Georgetown,  1th  April,  1834. 

"Dear  Sir:  In  compliance  with  your  request  to  give  you  such  in- 
formation as  I  may  possess  in  relation  to  a  claim  of  the  late  Francis 
Cazeau,  formerly  of  Canada,  and,  in  the  latter  part  of  his  life,  residing 
in  Paris,  I  have  to  state,  that  in  the  year  1809,  as  I  find  by  reference 
to  my  books,  I  received  letters  from  that  gentlemen  and  from  a  Mr. 
Orthling,  his  friend  or  attorney,  with  a  power  from  Mr.  Cazeau  to 
apply  to  the  American  government,  by  petition  to  Congress,  or  other- 
wise, for  payment  of  very  large  claims,  the  amount  not  now  remem- 
bered, that  he  professed  to  have  against  it,  as,  I  think,  for  supplies 
furnished  or  services  rendered  by  him,  perhaps  both,  to  the  Ameri- 
can army,  or  to  agents  of  the  American  government,  during  the 
revolutionary  war,  and  also,  as  I  believe,  for  lands  or  other  property 
lost  in  consequence  of  his  espousing  the  American  cause.  Other  let- 
ters were  afterwards  written  me,  by  one  or  both  of  those  gentleman, 
on  the  same  subject ;  and,  as  I  find,  the  correspondence  was  continued 
until  July,  1811. 

' '  For  the  documents  to  support  these  claims,  I  was  referred  to  Mr. 
Victor  Dupont,  and  a  Mr.  Duplanty,  in  this  country.    From  this  last 


JACOB  BIGELOW. 


43 


1  learned,  after  some  lapse  of  time  in  finding  him  out,  (Mr.  Dupont 
not  being  then  in  this  part  of  the  country,)  that  the  documents  in 
question  were  in  the  hands  of  Mr.  Cazeau's  son,  then  in  Canada,  to 
whom  I  wrote  in  the  fall  of  1809.  In  the  spring  of  1810,  I  received 
from  him  part  of  the  documents,  by  a  private  conveyance,  relating  to 
one  branch  of  the  claim,  amounting  to  some  twenty-odd  thousand 
dollars,  reported  as  due  Cazeau  by  William  Barbour,  in  some  public 
capacity,  in  the  year  1785 — I  think  to  the  Congress  of  that  day;  and 
information  from  Cazeau  (the  son)  that  the  remainder  of  the  docu- 
ments relating  to  the  loss  of  lands,  &c,  were  so  bulky  that  the  per- 
son to  whose  charge  the  others  had  been  committed  could  not  take 
them,  and  that  they  should  come  by  another  opportunity  ;  as  late  as 
July,  1811,  as  noted  in  a  letter  from  me  to  Mr.  Cazeau,  (the  elder,) 
I  see  that  these  had  not  then  come  to  hand.  In  a  communication 
from  this  last  mentioned  gentleman  made  in  1810,  the  late  Joel 
Barlow  was  associated  with  me  in  the  power  to  prosecute  these  claims  ; 
but  the  want  of  documents  then  to  enable  us  to  proceed,  and  his  de- 
parture for  France,  as  minister  for  the  United  States  near  that  gov- 
ernment, in  the  summer  of  1811,  prevented  his  taking  any  active  part 
in  the  business. 

"The  non-reception  of  the  papers  that  were  expected  from  Canada 
barred  my  further  movements  in  this  matter,  as  well  as  my  recollec- 
tion serves  me,  until  the  state  of  war  which  took  place  during  the 
next  year  (1812.)  when  it  was  considered  useless  to  attempt,  in  that 
situation  of  our  affairs,  to  obtain  any  grant  of  this  nature  from  Con- 
gress ;  and  no  petition,  in  relation  to  these  claims,  was  presented 
bv  me  then  or  afterwards ;  not  afterwards,  as  I  believe,  because  of 
my  hearing  of  the  death  of  Mr.  Cazeau,  before  or  soon  after  the  ter- 
mination of  the  war,  and  that  his  power  to  me  had  died  with  him. 
Nor  did  I  hear  anything  more  of  the  affair,  until  some  year  or  more 
had  elapsed.  In  the  inonth  of  August,  in  the  year  1817,  (I  get  the 
date  from  a  receipt  given  for  reimbursement  made  by  him  for  some 
postages  I  had  paid  in  the  case,)  a  Mr.  Reeves,  of  Canada,  called  on 
me,  as  the  representative  of  Mr.  Cazeau's  family,  to  ask  for  the  papers 
and  documents  in  this  claim,  which  had  come  into  my  bands,  and 
which  I  delivered  him ;  and  it  was  from  him,  as  I  am  pretty  sure, 
I  heard,  for  the  first  time,  that  application  had  been  made  to  Con- 
gress for  indemnification  for  these  claims,  and  that  such  had  been  re- 
ceived for  them,  or  part  of  them,  then  recently,  by  some  person,  but 
by  whom  I  don't  now  recollect,  fraudulently,  or  by  some  device  in 
which  the  name  of,  or  an  obsolete  power  from,  the  late  Mr.  Cazeau 
had  been  improperly  used. 

"If  I  had  had  any  intimation  of  such  a  procedure,  although  the 
power  to  me  had  become  extinct,  I  should  certainly  have  interfered 
to  prevent  it. 

"I  must  presume  that  the  name  of  Mr.  Cazeau  did  not  appear  in 
any  public  notice  of  the  transaction,  or  it  would  have  struck  my 
attention. 

' '  I  never  knew  Mr.  Cazeau  personally,  but  from  the  channel  through 
which  the  claim  came  to  me,  I  believed  him  to  be  an  honorable  man. 


44 


JACOB  BIGELOW. 


• 


and,  from  the  documents  sent  me,  that  he  had  been  a  great  sufferer 
in  our  cause,  and  had  good  right  to  indemnification  for  losses  he  had 
incurred. 

1 1  With  much  regard,  yours,  &c. , 

"J.  MASON. 

"Fraxcis  S.  Key,  Esq.,  Georgetown." 

There  is  surely  nothing  in  that  letter  tending,  in  any  manner,  to 
show  that  original  deed  of  assignment  was  among  the  papers  in 
General  Mason' s  possession.  Indeed,  the  language  of  the  letter  seems 
to  show  the  contrary  to  be  the  fact. 

Second.  An  ex  parte  affidavit  of  one  William  Smith,  which,  accord- 
ing to  Mr.  Key's  argument,  was  made  to  meet  an  objection  raised 
in  a  committee  of  one  of  the  Houses  of  Congress  to  the  claim.  That 
affidavit,  made  in  1838,  is  now  produced  to  show  the  possession  of 
said  deed  by  Cazeau  or  his  heirs.  This  affiant  married  a  grand- 
daughter of  Cazeau' s,  and  is  not,  therefore,  a  competent  witness, 
being  directly  interested  in  the  event  of  the  suit.  It  does  not  appear 
but  that  the  deposition  of  Mr.  Smith  might  have  been  taken,  and  the 
affidavit  is  also  objectionable  for  that  reason.  His  whole  statement, 
too,  is  mere  hearsay  and  conjecture,  except  as  to  one  alleged  fate, 
which  is.  that  in  1824  he  received,  in  the  city  of  Washington,  from 
General  Jones  the  papers  in  the  case,  among  which  he  says  "were 
the  two  original  papers  before  referred  to."  The  papers  thus  re- 
ferred to  are  described  in  a  previous  part  of  the  affidavit  as  "the 
two  original  papers  bearing  date  the  30th  November,  1807."  This 
is  no  description,  except  as  to  the  date,  of  the  deed  of  assignment  of 
the  claims  by  Cazeau  to  Corbeaux.  Such  a  description  is  entirely 
too  indefinite  to  be  relied  on.  Besides,  as  General  Jones  resides  in 
the  city  of  Washington,  why  is  it  that  his  deposition  has  not  been 
taken  by  the  claimant  ?  General  Jones  is  a  gentleman  of  great  re- 
spectability, and.  so  far  as  we  are  informed,  has  no  interest  in  the 
claim.  It  is  unnecessary  to  notice  further  the  affidavit  of  Mr.  Smith, 
of  whom  we  know  nothing,  except  that  he  was  at  one  time  an  agent 
of  the  heirs,  and  will  be  entitled  by  law.  through  his  wife,  to  a  share 
of  whatever  may  be  recovered  in  this  suit.  The  claim  being  a  very 
large  one,  he  has  a  great  interest  at  stake.  His  ex  parte  affidavit, 
under  the  circumstances,  is  entitled  to  no  weight. 

Third.  An  ex  parte  affidavit  of  the  claimant  himself,  Mr.  Bigelow, 
stating  that  he  received  said  deed  of  assignment,  in  1831,  from 
Cazeau' s  heirs  ;  but  no  importance  can  be  attached  to  that  affidavit. 
There  was  nothing,  after  this  Court  was  organized,  to  prevent  the 
taking  of  the  affiant's  deposition.  His  deposition  should  have  been 
taken,  after  notice  to  the  Solicitor  of  the  time  and  place  of  taking  it. 
An  opportunity  would  then  have  been  given  to  the  government  to 
cross-examine  the  witness,  and  to  ascertain  from  him  whether  or  not 
he  is  interested  in  the  event  of  the  suit.  I  exclude,  therefore,  from 
my  consideration  of  the  case,  this  ex  parte  affiidavit  of  the  claimant 
as  well  as  that  of  Mr.  Smith. 

Fourth.  The  original  deed  of  assignment  was  in  court  at  the  trial, 


JACOB  BIGELOW. 


45 


That  is  true,  and  the  deed  is  now  before  us.  But  how  did  it  get 
here  ?  Where  did  it  come  from  ?  These  inquiries,  however  im- 
portant they  may  be,  are  easily  answered.  That  deed,  it  is  certain,  did 
not  come  to  us  from  the  possession  of  Cazeau' s  heirs  or  of  the  claim- 
ant ;  and  it  is  equally  certain  that  it  did  come  here  from  the  Treasury 
Department.  It  was  transmitted  to  this  Court  by  the  Secretary  of 
the  Treasury  on  the  4th  of  January,  1855.  To  show  that  I  am  right 
in  this  matter,  the  Secretary's  report  transmitting  to  this  Court  said 
original  deed  (designated  in  that  report  as  No.  2)  is  here  copied,  and 
is  as  follows  : 

' '  Treasury  Department, 

''January  4,  1855. 

1 '  To  the  Court  of  Claims  : 

1 '  For  the  purpose  of  complying  with  your  order  of  the  8th  Novem- 
ber last,  in  the  case  of  Jacob  Bigelow,  administrator  of  Francis 
Cazeau,  vs.  The  United  States,  I  have  called  on  the  Register  of  the 
Treasury,  in  whose  custody  such  papers  are  placed  by  law,  for  those 
therein  mentioned.  That  officer  has  sent  me  a  large  mass  of  papers 
concerning  the  claim  of  Francis  Cazeau  and  his  representatives,  and 
informs  me  that  since  the  settlement  made  by  the  accounting  officers, 
on  the  7th  March,  1817,  under  the  act  of  3d  March,  1817,  directing 
the  sum  of  $42,737  93,  to  be  'paid  to  the  legal  representatives  of 
Francis  Cazeau,  late  merchant  at  Montreal,  or  to  his  or  their  assignee, 
or  attorney,  or  other  persons  lawfully  entitled  to  receive  the  same,  in 
full  compensation  of  all  claims  against  the  United  States,'  the  papers 
relating  to  this  claim  have  been  so  often  called  for  and  examined  by 
the  committees  of  both  Houses  of  Congress,  by  the  accountingaoffi- 
cers,  and  by  various  gents  who  have,  from  time  to  to  time  since  that 
period,  been  permitted  to  examine  them  in  behalf  of  parties,  who 
have  claimed  to  be  interested  therein,  that  the  whole  have  been  thrown 
into  such  confusion  that  it  is  now  impossible  to  ascertain  precisely 
upon  what  vouchers  the  settlement  under  the  act  of  3d  March,  1817, 
was  actually  made,  as  they  have  not  been  kept  distinct  from  the  pa- 
pers subsequently  added  to  the  mass  ;  and  it  appears  evident  that 
some  papers  originally  belonging  to  the  settlements  made  in  1817 
and  in  1844  have  disappeared,  and  can  no  longer  be  found. 

"In  answer  to  the  first  item  of  the  call,  being  for  the  vouchers  on 
which  the  settlement  under  the  act  of  3d  March,  1817,  was  made,  I 
have  accordingly  caused  to  be  selected  from  the  mass  such  papers  as 
seem  to  have  been  applicable  to  that  settlement,  and  herewith  trans- 
mit them. 

"No.  1,  being  a  copy  of  the  act  of  3d  March,  1817,  certified  by 
the  chief  clerk  of  the  State  Department. 

"No.  2,  being  one  of  the  original  parts  of  an  instrument,  purport- 
ing to  have  been  executed  in  duplicate  on  the  30th  November, 
1807,  under  the  hands  and  seals  of  Francis  Cazeau  and  Francis  Cor- 
beaux,  junior,  by  which,  for  the  consideration  therein  expressed  and 
acknowledged  to  have  been  received,  Francis  Cazeau  sold,  assigned, 
and  transferred  to  Francis  Corbeaux,  junior,  three  quarter  parts  of 


46 


JACOB  BIGELOW. 


the  claim  of  the  said  Cazeau  against  the  United  States,  and  gave  said 
Corbeaux  full  and  irrevocable  power  to  collect  the  remaining  quarter 
part  of  said  claim,  in  behalf  of  said  Cazeau,  stipulating-  a  penalty  in 
case  the  latter  should  revoke  the  power  to  collect  the  quarter  part  so 
retained  by  him. 

'•This  instrument  of  assignment  and  power  of  attorney  appears  to 
have  been  formally  acknowledged  before  Fulwar  Skipwith.  commer- 
cial agent  of  the  United  States  and  agent  for  prize  causes  at  Paris, 
as  certified  under  his  official  seal  at  the  date  of  its  execution  by  the 
parties  thereto. 

"No.  3,  being  a  copy  of  the  above  described  instrument  of  assign- 
ment of  three-fourths  of  the  claim  and  power  of  attorney  to  collect 
the  other  one-fourth,  by  David  Bailie  Warden,  American  consul  and 
prize  agent  at  Paris,  who  certifies  under  his  official  seal  that  the 
original  was  deposited  in  his  office  on  the  20th  November,  1808  :  the 
certificate  being  dated  20th  December,  1808. 

i;Na  4,  being  original  power  of  attorney,  dated  6th  May,  1816,  from 
Francis  Corbeaux,  jr.,  as  assignee  of  three-quarters  of  Cazeau' s  claim 
against  the  United  States,  and  attorney  to  collect  the  other  quarter, 
to  James  Grubb.  to  collect  and  receive  in  behalf  of  Corbeaux  the 
amount  of  the  claim,  with  power  of  substitution,  acknowledged  before 
James  Harding,  notary  public  at  London,  on  the  same  day.  Upon 
this  original  power  is  endorsed  the  substitution  of  Josephus  B.  Stew- 
art, by  Grubb,  on  the  9th  May,  1816,  and  the  whole  is  authenticated 
by  Thomas  Aspinwall,  United  States  consul  at  London,  under  his 
official  seal. 

'•No.  5  is  the  statement  of  the  account  of  the  legal  representatives 
of  Francis  Cazeau.  under  the  act  of  3d  March,  1817. 

'•No.  6  is  the  original  settlement,  No.  31,141,  made  by  the  ac- 
counting officers  in  favor  of  Josephus  B.  Stewart,  as  substitute  of 
Francis  Corbeaux,  junior,  attorney  and  assignee,  of  §42.  737  93,  under 
the  act  of  3d  March,  1817,  in  full  compensation  for  all  claims  against 
the  United  States  ;  which  amount  was  paid  Stewart  from  the  treasury 
accordingly. 

'•The  foregoing  comprise  the  vouchers  upon  which  the  settlement, 
referred  to  in  your  order,  either  was  or  might  have  been  made, 
together  with  the  original  settlement  itself. 

'•The  second  item  of  your  call  is  for  'an  instrument  purporting  to 
be  an  original  assignment  from  Francis  Cazeau  to  Francis  Corbeaux, 
which  was  filed  among  the  papers  relating  to  this  claim,  by  the 
representatives  of  Cazeau*. 

"Whether  the  paper  hereinabove  described,  as  marked  No.  2,  was 
originally  filed  in  support  of  the  claim  of  the  representatives  of  Cazeau, 
under  the  act  of  3d  March,  1817,  or  has  been  subsequently  placed 
among  the  papers,  and  by  whom,  1  am  unable  to  state  upon  distinct 
information.  It  would  seem  from  the  terms  of  the  letter  addressed 
by  R.  B.  Taney.  Secretary  of  the  Treasury,  to  H.  L.  White,  of  the 
Committee  of  Revolutionary  Claims  of  the  Senate,  dated  8th  March, 
1834,  that,  at  that  time,  an  assignment  from  Francis  Cazeau  to 
Francis  Corbeaux  was  among  the  papers  in  the  custody  of  the  Register. 


JACOB  BIGELOW. 


47 


the  phraseology  employed  evidently  referring  to  a  valid  original 
document;  while  the  report  of  Mr.  Maxcy,  page  10,  of  15th  June, 
1838,  states  that  the  paper  in  the  Register's  office  to  be  merely  the 
of  an  assignment,  without  validity  as  evidence.  When,  by  whom, 
or  upon  what  authority,  the  brief  memorandum  on  the  back  of  No.  2, 
which  appears  to  be  in  a  similar  handwriting  with  the  filing  and 
marking  of  the  papers  by  Mr.  Maxcy,  was  made,  I  have  no  informa- 
tion whatever.  The  paper  marked  No.  3  is  evidently  that  described 
by  Mr.  Maxcy.  Whether  that  was  the  only  proof  of  the  assignment 
at  the  time  the  settlement  was  made  by  the  accounting  officers,  under 
the  act  of  3d  March,  1817,  I  have  no  means  of  knowledge  beyond 
what  now  appears  from  the  papers.  The  document  referred  to  by 
Mr.  Maxcy  as  the  original,  and  by  him  marked  Y,  is  evidently,  a 
copy,  as  will  be  seen  among  the  papers  marked  by  him,  and  herewith 
transmitted. 

"The  first  clause  of  the  third  item  of  your  call  is  for  'the  papers 
relating  to  the  claim  of  said  Cazeau,  referred  to  in  a  report  upon  said 
claim  by  Virgil  Maxcy,  Solicitor  of  the  Treasury,  of  the  15th  June, 
1836,  found  in  Senate  documents,  No.  428,  1st  sess.  24th  Congress.' 

"In  compliance  with  that  clause,  I  herewith  transmit  the  papers 
referred  to,  so  far  as  they  are  now  found  in  the  mass  which  were 
marked  by  Mr.  Maxcy  in  succession  from  A  to  Z,  (no  paper  appear- 
ing to  have  been  marked  N  by  him,)  and  A  A  to  I  I,  excepting  that 
none  marked  C  C  have  been  found. 

The  last  clause  of  the  third  item  of  your  call  is  in  these  terms : 
'  Together  with  any  papers  connected  with  the  subject  which  you  may 
deem  important  in  an  investigation  of  this-  case.' 

"Under  this  call,  I  herewith  transmit  the  papers  of  settlement,  No. 
89,673,  made  by  the  accounting  officers  in  favor  of  Jacob  Bigelow,  ad- 
ministrator of  Francis  Cazeau,  on  the  29th  August,  1844,  as  follows: 

"No.  7.  Copy  of  act  of  Congress  of  15th  June,  1844,  directing 
$27,352  32  to  be  paid  to  the  legal  representatives  of  Francis  Cazeau, 
being  one-fourth  part  of  the  sum  appropriated  by  act  of  3d  March, 
1817,  with  interest  from  May,  1818. 

"No.  8.    Statement  of  account  under  last  named  act. 

"No.  9.  Certificate  of  orphans'  court  of  Washington  county,  that 
Jacob  Bigelow  is  administrator  of  Francis  Cazeau. 

"No.  10.  Original  settlement,  No.  89,673,  of  accounting  officers 
in  favor  of  Jacob  Bigelow,  administrator,  dated  29th  August,  1844, 
upon  which  $27,352  32  has  been  paid  from  the  treasury  to  Bigelow. 

' 4  These  papers  are  regarded  as  important  in  the  investigation  of 
this  case,  and  are  accordingly  sent  under  this  call,  for  the  purpose 
of  enabling  the  Court  to  perceive  the  grounds  on  which  this  payment 
was  directed  by  law  in  1844,  when  Congress  had  in  1817  made  an 
appropriation  in  full  compensation  of  the  claim  of  Francis  Cazeau. 

"It  seems  to  have  been  understood,  when  the  act  of  1844  was 
passed,  that  the  payment  of  three-quarters  of  the  claim  of  Francis 
Cazeau  against  the  United  States  was  legally  and  properly  made  in 
1817  to  the  substitute  of  Corbeaux.  If  faith  is  to  be  reposed  in  written 
instruments  solemnly  executed  and  duly  promulgated  by  being  de- 


48 


JACOB  BIGELOW. 


posited  and  registered  in  the  office  of  the  agent  of  the  United  States 
at  Paris,  it  was  clearly  so.  The  criticism  of  Mr.  Maxcy  as  to  the 
effect  of  the  paper  marked  by  him  Z,  seems  to  be  wholly  misplaced, 
probably  from  want  of  a  correct  translation  of  the  entire  paper.  He 
regards  it  as  an  agreement  between  the  parties  to  the  assignment, 
that  the  authority  to  collect  the  claim  shall  only  extend  to  two  ses- 
sions of  Congress,  when,  in  fact,  the  paper  recognizes  the  conveyance, 
in  absolute  property,  of  three-quarters  of  the  entire  claim,  and  the 
limitation  of  time  only  extends  to  the  one-quarter  to  which  Cazeau 
retained  the  beneficial  interest.  What  would  be  the  legal  or  equit- 
able effect  of  such  an  agreement,  or  of  any  revocation  of  the  power  of 
attorney,  not  notified  to  the  United  States  upon  whom  it  was  to 
operate,  it  is  not  now  necessary  to  consider,  as  the  authority  to  collect 
this  quarter  part,  in  behalf  of  Cazeau,  clearly  ceased  by  his  death  in 
1815  ;  and,  upon  this  ground,  the  payment  of  this  quarter  part  to 
Stewart  was  made  without  legal  authority.  Hence  the  act  of  1844 
provided  for  the  payment  of  this  quarter  part  of  the  sum  allowed  in 
1817,  with  interest  thereon  from  May,  1818,  being  the  date  when  the 
proper  agents  were  apprised  of  the  death  of  Cazeau  at  a  date  previous 
to  the  settlement.  The  facts  of  the  payment  made  to  Bigelow  in 
1844  are  therefore  material  to  be  understood. 

"There  is  a  mass  of  papers  filed  with  these  settlements  which  are 
not  included  in  your  call,  and  which  will  be  sent  should  the  Court 
specify  what  they  desire. 

"JAMES  GUTHRIE, 

"Secretary  of  the  Treasury.''1 

This  report  of  the  Secretary  shows,  what  I  have  before  stated,  that 
the  original  assignment  was  produced  at  the  trial,  not  from  the  pos- 
session of  the  claimant,  hut  from  the  possession  of  the  Treasury  Depart- 
ment. Whether  this  original  assignment  (marked  No.  2)  was  origi- 
nally filed  in  support  of  the  claim  of  the  representatives  of  Cazeau, 
under  the  act  of  3d  March,  1817,  or  had  been  subsequently  placed 
among  the  papers,  and  by  whom,  the  Secretary  of  the  Treasury  is 
unable  to  state  upon  distinct  information.  Neither  has  the  Secretary 
any  means  of  knowledge,  beyond  what  appears  from  the  papers, 
whether  the  copy  (marked  No.  3)  was  the  only  proof  of  the  assign- 
ment at  the  time  the  settlement  was  made  by  the  accounting  officers 
under  the  act  of  3d  March,  1817. 

I  have  now  shown  that  it  is  not  proved  that  either  Cazeau  or  his 
heirs  ever  had  possession  of  said  original  deed  of  assignment,  after 
it  was  deposited,  in  the  year  1808,  in  the  office  of  the  American  consul 
at  Paris.  All  the  reliable  information  we  have  as  to  where  the  deed 
has  been  since  it  was  so  deposited  is,  that  it  was  on  and  before  the  4th 
of  January,  1855,  in  the  Treasury  Department  of  the  United  States, 
and  was,  on  that  day,  transmitted  by  the  Secretary  of  the  Treasury 
to  this  Court. 

The  argument,  therefore,  founded  on  the  supposed  possesion  of  the 
deed  of  assignment  by  Cazeau  or  his  heirs,  to  show  a  surrender  of  the 
deed  to  him  or  them,  is  without  foundation.    But  had  there  been  such 


JACOB  BIGELOW 


49 


possession  after  the  treasury  payment  was  made,  it  could  have  very 
little  weight ;  and  even  such  possession  before  the  payment  would 
seem  to  require  some  additional  evidence  to  prove  the  surrender  of  so 
valuable  a  deed ;  as  to  that,  however,  I  have  no  decided  opinion. 

It  is  alleged  that  the  payment  was  made  at  the  treasury,  in  1817, 
to  Corbeaux's  attorney,  upon  his  presentation  of  a  copy  of  thedeed  of 
assignment,  and  that,  therefore,  the  payment  was  unlawfully  made. 
To  this  objection  there  is  a  short  and  conclusive  answer,  which  is, 
that  the  fact  is  not  proved  that  the  payment,  in  1817,  was  made  on 
the  presentation  of  a  copy.  That  fact  is  not  shown  by  the  report 
of  the  Secretary  of  the  Treasury,  nor  is  it  shown  by  any  other  evi- 
dence. But  there  is  another  answer  to  the  objection,  not  quite  so 
short  but  equally  conclusive.  It  is  this :  that  were  it  admitted  that 
the  payment  in  question  was  made  on  the  presentation  of  a  copy,  that 
would  not  show  the  payment  to  be  wrongful.  I  admit,  of  course,  the 
familiar  principle,  that,  on  the  trial  of  a  cause  in  court,  the  best  evi- 
dence must  be  produced  or  its  absence  accounted  for,  and  that  an 
original  instrument  is  better  evidence  than  a  copy.  But  that  princi- 
ple has  nothing  to  do  with  this  case.  The  question  we  have  here  to 
decide  is,  not  what  evidence  was  before  the  Secretary  of  the  Treasury 
when  he  paid  the  money  to  Corbeaux's  attorney,  in  1817,  but  whether, 
at  that  time,  Cazeau' s  heirs  were  the  owners  of  three-fourths  of  the 
claim?  It  is  certain  that  ten  years  before  the  payment,  namely,  in 
1807,  Corbeaux  was  the  owner  of  said  three-fourths,  by  a  regular  deed 
of  assignment  from  Cazeau,  which  deed  is  now  before  us ;  and  the 
claimant  to  invalidate  the  treasury  payment  of  those  three -fourths  to 
Corbeaux's  attorney,  in  1817,  must  prove  that  previously  to  such  pay- 
ment, Corbeaux's  ownership  had  ceased,  and  Cazeau  or  his  heirs  had 
become  the  owners.  But  the  claimant  has  furnished,  in  my  opinion, 
no  such  proof,  and  the  consequence  is,  that  the  said  payment  must  be 
considered  as  rightly  made  to  Corbeaux's  attorney.  That  being  the 
case,  it  is  perfectly  immaterial  whether  any  or  what  evidence  of  Cor- 
beaux's right  to  said  three-fourths  of  the  claim  was  before  the  Secretary 
of  the  Treasury  who  paid  the  mone}r. 

I  have  now,  I  believe,  examined  every  material  question  involved 
in  this  case  ;  and  to  avoid  any  misunderstanding  as  to  the  contents  of 
the  contracts,  or  of  the  other  material  papers  in  the  cause,  I  have 
copied  them  into  this  opinion. 

It  appears  to  me  that  there  is  no  foundation  for  the  claim. 


IN  THE  COURT  OF  CLAIMS. 
FRANCIS  CAZEAU' S  ADMINISTRATOR  VS.  THE  UNITED  STATES. 
SCARBURGH,  J.: 

This  claim  arose  during  the  revolutionary  war.  Congress,  by  an 
act  approved  March  3,  A.  D.  1817,  provided  for  it  as  follows  :  "That 
the  sum  of  forty-two  thousand  seven  hundred  and  thirty-seven  dollars 
and  ninety-three  cents  be  paid,  out  of  any  money  in  the  treasury  not 

Mis.  Doc.  190  4 


50 


JACOB  BIGELOW. 


otherwise  appropriated,  to  the  legal  representatives  of  Francis  Cazeau, 
late  merchant  at  Montreal,  or  to  his  or  their  assignee  or  attorney,  or 
other  person  lawfully  entitled  to  receive  the  same,  in  full  compensa- 
tion for  all  claims  against  the  United  States. " — (6  Stat,  at  L.,  p.  191.) 

By  a  deed  bearing  date  the  30th  day  of  November,  A.  D.  1807, 
Francis  Cazeau  assigned  to  Francis  Corbeaux  three-fourths  of  this 
claim,  and  thereby  authorized  him  to  prosecute  and  receive  the  whole 
thereof,  the  three-fourths  for  the  use  of  Corbeaux,  and  the  remaining 
fourth  for  the  use  of  Cazeau.  This  deed  was  executed  by  both  the 
parties  in  the  presence  of  Fulwar  Skipwith,  commercial  agent  of  the 
United  States,  and  of  the  subscribing  witnesses,  at  Paris,  on  the  day 
of  its  date  ;  and  it  was  deposited  in  the  office  of  the  American  consul 
at  Paris,  where  it  was  registered  on  the  20th  day  of  November  A.  D. 
1808. 

On  the  same  day  with  the  date  of  the  deed,  another  instrument,  the 
object  of  which  was  to  explain  the  deed,  was  executed  in  triplicate  by 
these  parties.  It  expressly  declares  "that  in  no  possible  case,  nor 
under  any  pretext  whatsoever,  may  either  the  one  or  the  other  of  the 
parties  to  the  aforesaid  contract  claim  to  annul  it;  that  is  to  say  : 
that  on  the  one  hand,  whatever  may  be  the  event  or  the  success  of  the 
claims  of  the  Sieur  Cazeau  upon  the  government  of  the  United  States  ; 
or  whatever  may  be  the  incidental  circumstances  which  may  supervene 
relatively  to  this  object,  neither  the  Sieur  Corbeaux,  nor  his  hiers  or 
assigns  may  claim  the  restitution  of  the  sum  of  twelve  hundred  thou- 
sand francs,  which  have  been  by  him  paid  to  the  said  Sieur  Cazeau 
for  the  price  of  the  cession  and  transfer  in  question  ;  nor  of  any  part 
of  that  sum  ;  the  whole  of  which  is  received  from  this  moment  forever 
and  definitively  by  the  said  Sieur  Cazeau,  in  every  state  of  things 
whatsoever.  And  that  on  the  other  hand,  the  three-quarters  interest 
granted  and  transferred  by  the  Sieur  Cazeau  to  the  Sieur  Corbeaux 
in  the  aforesaid  credits  and  claims,  are  equally  for  this  moment  and 
forever  received  by  the  latter,  definitively,  irrevocably,  and  likewise 
in  every  state  of  things  whatsoever/7 

It  then  further  declares  :  ' '  2d.  Forasmuch  as,  if  the  full  powers 
conferred  by  the  said  Sieur  Cazeau  upon  the  said  Sieur  Corbeaux  to 
the  effect  of  prosecuting  the  liquidation  and  payment  of  the  credits  in 
question  should  fail  in  fulfilling  their  object  from  any  cause  whatso- 
ever, which  may  be  attributed  to  the  said  Sieur  Corbeaux,  injury 
would  result  therefrom  to  the  Sieur  Cazeau,  who  remains  proprietor 
of  one-fourth,  which  he  has  reserved  to  himself  in  the  aforesaid  credits  ; 
and  as  this  injury  would  be  so  much  the  greater,  as  by  the  fourth 
article  of  their  aforementioned  contract  the  Sieur  Cazeau  has  deprived 
himself  of  the  faculty  of  revoking  the  said  powers,  under  the  penalty 
of  an  indemnity  of  twenty  thousand  piastres,  it  is  further  expressly 
agreed  between  the  parties  that  in  case  two  successive  sessions  of  the 
Congress  of  the  United  States  (counting  from  the  first  which  shall  be 
opened  after  the  date  of  these  presents)  shall  pass  away  without  the 
definitive  liquidation  of  the  credits  and  claims  of  the  Sieur  Cazeau 
having  been  pronounced  and  concluded  by  the  diligence  which  the 
said  Sieur  Corbeaux  has  bound  himself  to  contribute  to  this  result  as 


JACOB  BIGELOW. 


51 


promptly  as  possible,  then,  this  delay  having  fruitlessly  occurred,  the 
Sieur  Cazeau  shall  re-enter  upon  the  exercise  of  his  natural  rights  ; 
and  may  revoke  freely  and  at  all  times  the  powers  with  which  he  has 
invested  the  said  Sieur  Corbeaux  ;  nor  shall  the  latter  or  his  heirs  or 
assigns  ever  recover  of  the  said  Sieur  Cazeau  the  stipulated  sum  of 
twenty  thousand  piastres,  nor  any  of  the  indemnity  whatsoever  for 
that  cause." 

Francis  Cazeau  died  in  the  year  1815. 

On  the  Gth  day  of  May  A.  D.  1816,  Francis  Corbeaux,  by  a  power 
of  attorney  of  that  date,  in  which  the  deed  of  assignment  from  Ca- 
zeau to  Corbeaux  is  referred  to,  appointed  James  Grubb  his  agent 
to  prosecute  and  recover  the  claim,  the  three-fourths  for  the  use  of 
Corbeaux,  and  the  remaining  fourth  for  the  use  of  Cazeau ;  and  on 
the  9th  day  of  May,  A.  D.  1816,  James  Grubb  substituted  Josephus 
B.  Stewart  in  his  place,  and,  as  such  substituted  agent,  Stewart  pro- 
secuted the  claim  and  received  the  monev  appropriated  bv  the  act  of 
March  3.  A.  D.  1817. 

Afterwards,  Congress,  by  an  act  approved  June  15,  A.  D.  1814, 
provided  "that  the  sum  of  twenty-seven  thousand  three  hundred  and 
fifty-two  dollars  and  thirty-two  cents  be  paid,  out  of  any  money  in 
the  treasury  not  otherwise  appropriated,  to  the  legal  representatives 
of  Francis  Cazeau,  late  merchant  at  Montreal,  or  to  their  legal  attor- 
ney or  other  person  lawfully  entitled  to  receive  the  same  ;  it  being 
one-fourth  of  the  sum  appropriated  under  an  act  of  Congress  approved 
on  the  third  of  March,  one  thousand  eight  hundred  and  seventeen, 
with  interest  from  May,  one  thousand  eight  hundred  and  eighteen." 
(6  Stat,  at  L.,  p.  915.)  The  sum  thus  appropriated  has  been  paid  to 
the  petitioner. 

The  petitioner  now  claims  the  residue  of  the  appropriation  made 
by  the  act  of  March  3,  A.  D.  1817,  upon  the  ground  that  Josephus 
B.  Stewart  was  not  lawfully  authorized  to  receive  it,  and  that,  conse- 
quently, the  payment  made  to  him  is  not  binding  on  the  legal  repre- 
sentatives of  Francis  Cazeau. 

The  petitioner  has  insisted,  in  argument,  that  the  power  of  attorney 
from  Cazeau  to  Corbeaux  was  revoked  by  the  death  of  the  former. 
In  regard  to  the  one-fourth  of  the  claim  reserved  by  Cazeau,  this  is 
true  ;  and  it  was,  doubtless,  for  this  reason  that  Congress  passed  the 
act  of  June  15,  A.  D.  1844.  But  in  regard  to  the  three-fourths, 
which  were  assigned  to  Corbeaux,  this  principle  is  inapplicable, 
because  the  power  as  to  that  was  coupled  with  an  interest,  and 
irrevocable,  therefore,  even  by  the  death  of  Cazeau. — (Hunt  vs. 
Rousmanier,  8  Wheat,  R.,  174.) 

The  petitioner  has  also  urged,  in  argument,  that  the  claim  was  not 
assignable.  To  this  objection  the  act  of  March  3,  A.  D.  1817,  fur- 
nishes a  complete  answer.  It,  in  express  terms,  directs  the  payment 
to  be  made  to  the  legal  representatives  of  Francis  Cazeau,  or  to  his  or 
their  assignee,  or  attorney,  or  other  person  lawfully  entitled  to  receive- 
the  same.  As  the  payment  was  not  to  be  made  to  Francis  Cazeau, 
but  to  his  legal  representatives,  it  is  plain  that,  in  the  contemplation 
of  the  statute,  Cazeau  was  dead;  and,  of  necessity,  therefore,,  m  re- 


52 


JACOB  BIGELOW. 


ferring  to  his  assignee,  it  meant  to  recognzie  any  assignment  made  by 
him  in  his  lifetime.  If,  then,  the  payment  was  made  to  such  assignee, 
or  to  the  lawful  attorney  of  such  assignee,  it  was  valid. 

Much  stress,  too,  was  laid  on  the  fact  that  the  payment  was  made 
on  the  production  of  only  a  copy  of  the  assignment.  It  is  manifest, 
however,  that  if  the  deed  of  assignment  was  valid  in  its  inception, 
and  continued  in  force  at  the  time  of  the  payment,  it  is  wholly  im- 
material whether  the  original  or  only  a  copy  was  then  produced.  It 
is  only  in  the  event  that  a  prior  annulment  of  the  deed  can  be 
shown  that  the  non-production  of  the  original  at  the  time  of  pay- 
ment can  become  important.  If  this  could  be  shown,  then  perhaps 
the  United  States  could  not  defend  the  payment  on  the  ground 
of  any  equity  arising  in  their  favor  from  the  want  of  notice  of  its 
annulment,  because  the  failure  to  produce  the  original  ought  to  have 
put  them  on  the  inquiry.    But  on  this  point  I  give  no  opinion. 

The  petitioner  alleges  in  his  petition  that  no  part  of  the  1,200,000 
francs  mentioned  in  the  deed  as  the  consideration  of  the  assignment 
was  ever  paid  by  Corbeaux  to  Cazeau.  The  receipt  of  the  whole 
amount  is  expressly  acknowledged  in  the  deed.  Still  this  acknowledg- 
ment is  not  conclusive  upon  Cazeau.  Though  made  by  deed,  he  and 
those  claiming  under  him  are  not  estopped  from  denying  it ;  but  it 
throws  the  burden  of  proof  on  theni.  Not  only  is  the  evidence  in 
the  record  wholly  insufficient  to  show  that  the  consideration  stated 
in  the  deed  was  not  paid,  but  on  the  contrary,  we  find  the  payment 
again  solemny  acknowledged  by  Cazeau  in  the  collateral  instrument 
executed  on  the  same  day  with  the  deed  of  assignment.  The  state- 
ment made  by  Stewart  before  the  committee  of  the  Senate,  in  1817, 
that  Cazeau  made  the  assignment  to  Corbeaux  "as  a  retribution  for 
his  generous  support  of  himself  and  family,"  was  not  made  within 
the  scope  of  his  authority,  and,  as  between  Corbeaux  and  Cazeau, 
was  not  binding  on  the  former.  But  even  if  the  consideration  was 
different  from  that  expressed  in  the  deed,  or  there  was  no  considera- 
tion at  all,  still  the  assignment,  being  made  by  an  instrument  under 
seal,  was  valid,  unless  it  was  tainted  by  fraud.  If  the  consideration 
was  so  tainted,  the  fraud  rendered  the  deed  voidable  only,  and  not 
void  ;  and,  therefore,  to  affect  the  United  States  at  all  on  this  ground, 
it  must  be  shown  that  they  had  notice  of  it  before  the  payment  was 
actually  made.  It  is  not  pretended  that  they  had  any  such  notice. 
Moreover,  fraud  is  not  to  be  presumed,  it  must  be  proved ;  and  the 
evidence  here  is  wholly  insufficient  for  this  purpose.  It  seems  to  me 
that  there  is  no  ground  for  saying  that  the  assignment  was  not  valid 
in  its  inception. 

The  petitioner  avers  in  his  petition  that  in  April,  A.  D.  1808, 
Cazeau  revoked  the  power  of  attorney  given  by  him  to  Corbeaux,  and 
caused  criminal  proceedings  to  be  instituted  against  him ;  in  conse-* 
quence  of  which  the  original  power  and  assignment  were  surrendered 
to  Cazeau  and  annulled,  and  have  ever  since  been  in  the  possession  of 
himself  and  his  heirs  until  filed  with  their  papers  before  Congress. 
The  principal  evidence  to  sustain  this  averment  is  a  lette:  from 
Cazeau  to  his  grandson,  and  a  paper  purporting  to  be  a  receipt  from 


JACOB  BIGELOW. 


53 


one  Thille,  thereto  appended,  (see  Exhibit  "A  A,")  and  a  paper 
marked  "BB." 

It  seems  to  me  too  plain  to  admit  of  question,  that  the  letter  of 
Cazeau  to  his  grandson,  and  the  paper  thereto  appended,  are  wholly 
inadmissible  in  this  case  for  any  purpose.  The  letter  contains  a 
denial  by  Cazeau  that  he  had  received  any  part  of  the  1,200,000 
francs ;  but  surely  it  cannot  be  received  as  evidence  in  his  favor  of 
the  truth  of  his  denial.  The  evidence  that  he  did  receive  the  whole 
sum  is  found  in  the  deed  of  assignment  and  the  collateral  instrument 
executed  expressly  to  explain  it.  Something  more  than  a  mere  denial 
by  Cazeau  is  necessary  to  destroy  the  effect  of  such  evidence. 

The  letter  also  contains  a  statement  by  Cazeau  that  he  had  brought 
Corbeaux  before  the  criminal  court,  and  that  "the  private  writing" 
would  be  annuled.  Was  this  criminal  court  a  court  of  record,  or  a 
court  not  of  record ;  and  had  it  jurisdiction,  not  only  in  criminal 
cases,  but  to  annul  a  "private  writing?"  The  evidence  in  this  case 
furnishes  no  means  of  answering  this  question.  But,  whatever  was 
its  jurisdiction,  and  whether  it  was  a  court  of  record  or  a  court  not  of 
record,  there  can  be  no  doubt  that  its  acts  must  be  proved  in  some 
other  way  than  by  Cazeau' s  letter.  But  even  this  letter  does  not 
state  that  the  "private  writing"  had  been,  but  only  that  it  would 
be  annuled. 

The  paper,  purporting  to  be  a  receipt  from  M.  Thille  to  Cazeau,  is, 
at  most,  an  unsworn  statement,  and  for  that  reason  inadmissible. 
Nor  do  we  know  who  he  is,  or  whether,  in  point  of  fact,  he  ever  gave 
the  receipt.  But  if  it  be  admitted  as  evidence,  it  throws  no  light 
upon  the  point  in  question.  If  it  refers  at  all  to  the  deed  of  assign- 
ment, it  speaks  only  of  a  brief  or  copy  of  it,  and  is  silent  in  regard 
to  its  annulment. 

The  paper  marked  "B  B"  is  equally  unsatisfactory.  If  it  be  re- 
garded as  a  paper  properly  admissible  in  evidence  in  this  case,  still  it 
proves  nothing.  It  states  that  Corbeaux  offered  to  Cazeau  sixteen 
documents,  which  are  particularly  described ;  but  neither  of  them  is 
the  deed  of  assignment.  It  also  states  that  Corbeaux  offered  to  per- 
mit Cazeau  to  withdraw  from  the  office  of  the  minister  of  foreign 
relations  the  documents  deposited  therein  by  him  and  Cazeau  ;  but 
that  he,  at  the  same  time,  made  an  express  reservation  of  all  his 
rights  arising  from  the  agreements  which  he  and  Cazeau  had  pre- 
viously entered  into.  Even  these  offers,  the  paper  states,  were  re- 
jected by  Cazeau.  Nor  does  it  appear  that  the  deed  of  assignment 
was  in  any  way  referred  to  in  the  paper  "B  B." 

Not  only  is  there  no  sufficient  evidence  in  this  case  that  any  legal 
proceeding,  either  civil  or  criminal,  was  ever  instituted  by  or  at  the 
instance  of  Cazeau  against  Corbeaux  in  relation  to  the  deed  of  assign- 
ment, but  it  nowhere  satisfactorily  appears  that  the  deed  was  in 
Cazeau' s  possession  at  any  time  after  it  wTas  deposited  in  the  office 
of  the  American  consul.  William  Smith,  whose  affidavit  is  referred 
to  on  this  point,  is  an  interested  witness  ;  but,  even  if  he  were  free 
from  all  objection,  his  testimony  is  wholly  insufficient  to  establish  it. 
He  testifies  that  he  believes  that  John  Jesse  Reeves  brought  the 


54 


JACOB  BIGELOW. 


deed  from  Paris  in  1816  ;  but  it  is  evident  that  he  neither  knew  nor 
could  have  known  whether  such  was  the  fact.  He  also  states  that 
Reeves  informed  the  family  that  he  had  placed  all  the  papers  which 
he  brought  from  Paris,  and  also  those  which  he  otained  from  Gen- 
eral Mason,  in  the  hands  of  General  Jones,  and  he  knoics  that,  in  the 
fall  of  1824,  he  received  the  original  deed  from  General  Jones.  It 
is  plain,  however,  that  how,  or  when,  or  from  whom,  General  Jones 
received  it,  the  witness  neither  knew  nor  had  the  means  of  knowing. 
Nor  does  it  satisfactorily  appear  how,  or  when,  or  by  whom,  it  was 
obtained  from  the  office  of  the  American  consul.  A  difficulty,  it 
seems,  arose  on  this  point  in  the  year  1838,  and  then  the  affidavit  of 
Wm.  Smith  was  made. — (See  Mr.  Key's  argument.) 

Charles  L.  Cazeau,  in  his  memorial  to  Congress,  dated  March  20, 
A.  D.  1818,  states  that  the  deed  of  assignment  had  been  annulled, 
and  was  then  in  his  hands.  In  a  letter  written  by  him  to  the  Com- 
mittee of  Ways  and  Means,  dated  March  26,  A.  D.  1818,  he  states 
that  Francis  Cazeau  instituted  a  suit  to  obtain  the  annulling  and 
cancelling  of  the  original  contract,  and  by  virtue  thereof  received 
and  recovered  it  from  the  office  of  the  consul,  where  it  had  been 
deposited,  "the  same  being  ipso  facto  declared  cancelled,  revoked, 
null  and  void."  This,  he  says  was  done  in  the  year  1809.  In 
proof  of  it  he  refers  to  the  papers  "A  A"  and  "B  B,"  which  have 
already  been  noticed.  Moreover,  whether  in  point  of  fact  he  then 
had  the  original  deed  in  his  possession  we  have  no  means  of  deter- 
mining. Even  if  he  had  in  his  possession  at  that  time  a  paper  which 
he  regarded  as  the  original  deed,  to  enable  this  Court  to  decide 
whether  it  was  or  not,  some  better  evidence  is  necessary.  But  even 
if  such  evidence  existed,  proof  that  he  had  possession  of  the  original 
deed  on  the  20th  day  of  March,  A.  D.  1818,  would  not  be  proof  that 
it  was  in  the  possession  of  Cazeau  in  his  lifetime. 

As  my  opinion  is  that  it  is  not  shown  by  the  evidence  that  the 
deed  of  assignment  was  in  Cazeau' s  possession  after  it  was  deposited 
in  the  office  of  the  American  consul,  I  need  not  consider  what  would 
have  been  the  effect  of  such  possession  if  it  had  in  point  of  fact 
existed. 

It  is  a  matter  worthy  of  notice,  that,  notwithstanding  Cazeau  em- 
ployed General  Mason  as  his  agent  to  prosecute  this  claim  as  early  as 
the  year  1809,  still  he  did  not,  at  any  time  during  his  life,  give  notice 
to  the  government  of  the  United  States  or  inform  his  agent  that  the 
assignment  had  been  annulled,  or  even  that  it  had  ever  had  an  exist- 
ence. It  seems  to  me  that  if  the  annulment  had  actually  occurred, 
as  has  been  alleged,  it  was  the  natural  suggestion  of  prudence  that 
Cazeau' s  agent  should  have  been  informed  of  it,  and  that  some  reli- 
able evidence  of  it  should  have  been  preserved.  Instead  of  this, 
however,  it  is  not  heard  of  by  General  Mason  or  the  government  of 
the  United  States  till  after  the  death  of  Cazeau,  and  after  the  money 
had  been  paid  to  Corbeaux's  agent,  and  after  Corbeaux  had  no  longer 
any  interest  to  contest  the  point  with  Cazeau' s  representatives.  And 
from  that  time  to  the  present  the  only  evidence  which  has  been  offered 
on  this  point  is  that  which  has  been  noticed.    General  Mason,  it  is 


JACOB  BIGELOW. 


55 


evident,  never  heard  of  this  assignment  till  after  Stewart  had  re- 
ceived the  money  appropriated  by  the  act  of  1817.  It  is  stated  in 
the  report  of  the  Judiciary  Committee,  House  of  Representatives,  made 
March  27,  A.  D.  1844,  that  "notice  was  given  the  government  by 
Cazeau  of  his  still  holding  the  claim  but  on  what  evidence  this 
statement  was  made  I  have  not  been  able  to  discover.  If  he  did  give 
such  notice,  it  seems  to  me  that  he  ought  to  have  made  some  reference 
to  the  deed  of  assignment  and  its  annulment.  But  it  nowhere  ap- 
pears that  this  was  done.  It  is  also  stated  in  the  same  report  that 
"it  does  appear  that  Cazeau  obtained  possession  of  the  original 
papers,  which  he  forwarded  to  General  Mason,  of  Georgetown,  in 
1809,  to  be  again  presented  to  Congress."  If  by  "original  papers" 
is  here  meant  the  deed  of  assignment,  the  evidence  does  not  sustain 
the  report.  Whether  Cazeau  ever  parted  with  the  possession  of  the 
papers  relating  to  his  claim  or  any  of  them  were  ever  in  the  posses- 
sion of  Corbeaux,  does  not  appear  in  the  evidence. 

It  seems  to  me  that  the  evidence  in  this  case  does  not  show  that 
the  deed  of  assignment  was  ever  annulled.  If  it  never  was  annulled, 
then  the  payment  to  Stewart  was  unquestionably  valid. 

My  opinion  is,  that  the  petitioner  is  not  entitled  to  relief. 


IN  THE  COURT  OF  CLAIMS. 
BIGELOW,  ADMINISTRATOR  OF  CAZEAU  VS.  THE  UNITED  STATES. 

Gilchrist,  Chief  Justice : 

I  am  obliged,  upon  examination,  to  adhere  to  the  opinion  originally 
delivered  by  the  Court  in  favor  the  claimant. 

I  believe  that  a  very  great  fraud  has  been  perpetrated  upon  the 
government  of  the  United  States,  and  upon  the  persons  whose  inter- 
ests are  represented  by  this  claimant,  by  him  to  whom  the  money 
was  paid  without  sufficient  investigation  by  the  officers  of  the  treasury. 
If  the  United  States  have  paid  money  to  the  wrong  person,  that 
neither  in  equity  nor  in  law  is  an  answer  to  the  demand  of  the  person 
who  is  entitled  to  the  money.  The  fraud  may  be  enveloped  in  such 
a  complication  of  facts  that  it  may  be  difficult  to  expose  it  and  show 
the  rights  of  the  claimant,  but  that  the  fraud  exists  I  have  a  very 
decided  opinion.  The  material  question  is  one  of  fact,  and  that  is, 
was  the  money  paid  by  the  United  States  to  the  person  entitled  to 
receive  it? 

The  facts  upon  which  the  petitioner  relies  are  as  follow  : 
Francis  Cazeau  was  a  wealthy  merchant,  residing  in  Montreal  at 
the  commencement  of  the  revolution,  and  espoused  the  caused  of  the 
revolted  colonies.  In  the  year  1777,  in  pursuance  of  a  verbal  agree- 
ment with  General  Arnold,  he  procured  eight  thousand  bushels  of 
wheat,  and  had  it  ground  into  flour,  and  packed  for  the  American 


56 


JACOB  BIGELOW. 


troops,  but  as  the  Americans  did  not  invade  Canada,  and  Cazeau  was 
imprisoned  for  favoring  their  cause,  the  flour  was  ruined,  and  he  lost 
it  with  his  expenses  and  commissions. 

In  the  spring  of  1777  Cazeau  also  despatched  to  Ticonderoga,  to 
delivered  to  the  American  general  there,  three  batteaux  laden  with 
provisions,  <fec,  and  costing  four  thousand  dollars.  The  Americans 
had  vacated  that  post,  but  while  the  boats  were  there  the  Americans 
made  a  descent  upon  the  place,  and  captured  and  plundered  the  boats 
as  enemy7  s  property,  by  which  Cazeau  lost  the  value  of  the  supplies 
and  his  expenses  and  commissions. 

He  also  incurred  expenses  amounting  to  $276  64  for  procuring 
intelligence  for  the  Americans. 

On  the  18th  of  March,  1784,  Congress  directed  the  claims  to  be 
settled,  with  interest  from  the  year  1777,  and  directing  Cazeau' s  oath 
to  be  received  in  support  of  other  evidence.  In  the  month  of  July, 
1785,  Mr.  Barber,  a  commissioner,  who  was  authorized  to  examine 
the  accounts  of  Canadian  refugees,  reported  in  favor  Cazeau' s  claim. 
In  the  month  of  January,  1817,  a  committee  of  the  Senate  reported 
in  favor  of  the  claim,  and  a  bill,  was  passed  for  the  payment  of 
$42,  737  97,  including  interest,  to  the  legal  representatives  of  Cazeau. 
But  the  heirs  of  Cazeau  have  never  received  any  part  of  this  money 
except  as  hereinafter  stated. 

The  claimant  alleges  that  in  the  year  1807  Cazeau  went  to  France, 
and  being  seventy-eight  years  old,  and  broken  down  by  grief  and 
infirmity,  was  induced  by  the  practice  of  gross  imposition  upon  him, 
to  execute  a  power  of  attorney  to  one  Corbeaux  to  prosecute  this 
claim  for  him,  and  an  assignment  to  Corbeaux  of  three-fourths  of  the 
claim  for  the  nominal  consideration  of  two  hundred  thousand  dollars, 
none  of  which,  however,  was  paid  to  him.  The  claimant  produced 
in  evidence  this  instrument,  the  test  of  which  is  as  follows  :  "In  testi- 
mony of  the  whole  of  which,  the  said  Francis  Cazeau  and  Francis 
Corbeaux,  jr.,  have  hereunto  interchangeably  affixed  their  hands  and 
seals  in  the  city  of  Paris,  on  the  thirtieth  day  of  November  in  the 
year  of  our  Lord,  one  thousand  eight  hundred  and  seven."  The 
instrument  purports  to  be  executed  in  the  presence  of  two  witnesses. 
Then  follows  a  certificate  that  on  the  day  aforesaid,  Cazeau  and 
Corbeaux  came  before  Fulwar  Skipwith,  commercial  agent  of  the 
United  Stated  at  Paris,  and  agent  for  prize  causes,  and  acknowledged 
the  instrument  to  be  their  free  act  and  deed,  upon  a  copy  of  the 
instrument.  After  this  is  a  certificate  signed  by  David  Bailie  War- 
den, under  the  seal  of  the  consulate  of  the  United  States  at  Paris, 
stating  ' '  that  the  above  instrument  of  writing  is  a  true  and  perfect  copy 
of  the  original,  executed  by  the  above  mentioned  individuals,  *  *  * 
and  the  said  original  instrument  is  deposited  in  my  ofpce,  and  was 
there  registered  in  folio  1,  the  twentieth  day  of  November,  one  thou- 
sand eight  hundred  and  eight."  This  certificate  bears  date  the  20th 
of  December,  1808.  The  instrument  commences  by  stating  the  char- 
acter and  amount  of  the  claims  of  Cazeau  upon  the  United  States  and 
that  Congress  had  adjourned  the  consideration  of  them  to  the  month 
of  November,  1802,  since  which  time  Cazeau  had  heard  nothing 


JACOB  BIGELOW. 


57 


further  concerning  them,  and  stating  also  that  his  unfavorable  cir- 
cumstances made  it  a  material  object  for  him  to  have  the  claim  properly 
managed,  and  that  his  old  age  and  bad  state  of  health  made  it  im- 
practicable for  him  to  attend  to  it  in  person.  The  instrument  then 
stated  that  it  was  "indented  of  two  parts/'  and  in  consideration  of 
the  sum  of  1,200,000  francs  paid  by  Corbeaux  to  Cazeau,  Cazeau 
assigned  to  Corbeaux  three-fourths  of  his  claim  upon  the  United 
States,  or  of  what  may  be  recovered  thereon,  and  that  the  better  to 
insure  the  settlement  and  recovery  of  said  claims,  Corbeaux  should 
be  fully  and  irrevocably  empowered  to  act  both  in  his  own  behalf  and 
on  behalf  of  Cazeau,  and  Corbeaux  was  appointed  by  Cazeau  his 
attorney  irrevocable  as  far  as  regarded  the  three-quarters  parts  as- 
signed for  him,  the  said  Cazeau  for  his  use  and  benefit,  in  his  name  and 
behalf  as  far  as  regarded  the  one-quarter  part  of  said  claims  not 
assigned  and  conveyed  by  these  presents,  and  as  to  what  regards  the 
said  three -fourths  parts,  presently  assigned  and  conveyed  for  the  proper 
use  and  benefit  of  Corbeaux,  empowering  him  to  receive  the  same 
from  the  United  States,  with  a  power  of  substitution.  It  was  also 
provided,  that  if  Cazeau  should  annul  the  whole  or  part  of  the  powers 
relative  to  his  interest,  not  assigned,  he  should  forfeit  the  sum  of 
twenty  thousand  dollars. 

On  the  same  day  with  the  execution  of  the  above  instrument,  a 
collateral  agreement  was  made  between  the  parties,  providing  that  if 
Cazeau's  claim  should  not  be  liquidated  within  the  next  two  sessions  of 
Congress,  Cazeau  might  re-enter  into  the  exercise  of  his  rights,  and 
might  revoke  the  powers  which  he  had  given  to  Corbeaux,  who  should 
not  claim  of  him  the  stipulated  sum  of  twenty  thousand  dollars,  nor 
any  indemnity  whatever. 

On  the  19th  of  April,  1808,  Cazeau  executed  an  instrument  revoking 
the  power  of  attorney  to  Corbeaux,  as  appears  by  the  receipt  of  M. 
Thille  for  the  fees  for  that  service.  In  the  month  of  May,  1808, 
Cazeau  caused  criminal  proceedings  to  be  instituted  against  Corbeaux 
for  swindling.  It  is  alleged  by  the  claimant  that  in  consequence  of 
these  proceedings  the  original  assignment  and  power  of  attorney  was 
surrendered  and  annuled.  This  original  instrument,  it  appears,  was 
placed  by  the  heirs  of  Cazeau,  in  the  year  1831,  in  the  hands  of 
Bigelow,  the  administrator  and  present  claimant,  who  now  produces 
it  on  the  trial. 

It  is  in  evidence  that  Cazeau  died  in  Paris  in  the  year  1815. 

The  claimant  alleges  that  the  original  instrumennt  having  been 
recorded  in  the  American  consulate  at  Paris,  in  the  year  1808,  Cor- 
beaux procured  a  copy  thereof,  and  executed  a  power  of  attorney  to 
one  James  Grubb,  in  London,  who  substituted  for  himself  one  Joseph 
B.  Stewart.  The  latter  came  to  this  country  and  induced  Congress 
to  pass  the  act  of  1817,  and  received  from  the  treasury  the  money 
thus  appropriated. 

The  claimant  alleges  that  the  receipt  of  the  money  by  Stewart  was 
a  fraud  upon  the  heirs  of  Cazeau,  and  that  the  payment  of  the  money 
by  the  government  to  Stewart  did  not  discharge  the  claim  of  the  heirs 
upon  the  United  States. 


58 


JACOB  BIGELOW. 


It  is  contended  by  the  claimant  that  there  was  but  one  original 
instrument,  which  had  been  surrendered  to  Cazeau. 

It  is  answered  by  the  Solicitor  that  the  instrument  purports  to  be 
"indented  in  two  parts,  and  that  the  teste  shows  that  the  parties 
executed  it,"  interchangeably,  thus  showing  that  both  Cazeau  and 
Corbeaux  kept  an  original. 

When  a  paper  purports  to  be  in  two  parts,  and  to  be  executed  inter- 
changeably, these  two  circumstances,  in  the  absence  of  all  evidence 
and  all  considerations  to  the  contrary,  undoubtedly  show  that  the 
instrument  is  in  two  parts.  But  in  this  case  there  is  no  attempt  to 
show,  if  there  were  two  parts,  what  became  of  the  part  which  belonged 
to  Corbeaux,  or  why  it  was  necessary  to  procure  a  copy  from  the 
American  consulate,  and  present  it  at  the  treasury  as  evidence,  for 
the  money  was  paid  upon  the  evidence  furnished  by  the  copy.  The 
certificate  of  Mr.  Warden  states  that  ' '  the  orignal  is  deposited  in  my 
office,  and  was  there  registered  November  20,  1808"  and  the  certifi- 
cate bears  date  December  20,  1808.  At  what  time  it  was  there  de- 
posited does  not  appear,  and  Mr.  Warden  speaks  of  but  one  original. 
The  probability  is,  that  it  was  placed  there  by  the  assent  of  both 
parties,  and  without  the  assent  of  both  it  is  not  probable  that  the  de- 
positary would  have  surrendered  it.  How,  then,  did  it  come  into  the 
possession  of  the  heirs  of  Cazeau  by  whom  it  was  delivered  to  the 
claimant  twenty-five  years  ago  ?  Now,  whatever  effect  may  be  given 
to  the  proceedings  commenced  in  Paris  by  Cazeau  against  Corbeaux 
for  fraud,  or  to  the  act  of  revocation  of  the  power  by  Cazeau,  the  col- 
lateral agreement,  above  referred  to,  is  necessary  to  be  considered  in 
relation  to  this  question.  That  provides  that  if  the  claim  should  not 
be  liquidated  in  the  course  of  the  next  two  sessions  of  Congress, 
Cazeau  might  re-enter  into  the  exercise  of  his  rights,  and  might  re- 
voke the  power.  The  claim  was  not  liquidated  within  the  period 
specified.  Subsequently  the  instrument  is  found  in  the  possession  of 
the  heirs  of  Cazeau.  Does  not  this  afford  a  strong  presumption  that 
the  collateral  agreement  had  been  carried  into  effect,  and  that  the 
instrument  had  been  surrendered  by  the  assent  of  the  parties? 

The  facts  that  the  instrument  is  described  as  ' '  indented  in  two 
parts,"  and  as  executed  "interchangeably,"  are  evidence  tending  to 
show  that  the  facts  are  as  they  are  stated  to  be,  that  is,  that  the  in- 
strument was  thus  executed.  But  these  statements  are  slight  evi- 
dence at  best.  They  do  not  partake  of  the  nature  of  an  estoppel, 
precluding  the  parties  from  averring  the  contrary.  They  are  simply 
recitals  of  a  fact,  and  are  to  be  considered  and  weighed  in  connexion 
with  other  circumstances.  And  these  statements  constitute  the  only 
evidence  in  the  case  that  the  instrument  was  in  two  parts.  The 
money  was  paid  upon  the  evidence  furnished  by  a  copy.  There  is  no 
reason  to  suppose  that  any  other  person  might  not  have  procured  a 
copy  as  easily  as  Stewart,  nor  that  he  might  not  have  procured  a  copy 
at  any  time.  From  the  evidence  in  the  case,  and  particularly  from 
the  letter  of  Mr.  Aspinwall  of  the  25th  of  March,  1833,  it  does  not 
appear  that  the  characters  of  Grubb  or  Stewart  were  above  suspicion. 


JACOB  BIGELOW. 


59 


They  were  both  clerks  in  the  American  consulate  at  London.  Grnbb 
was  discharged  for  misconduct  on  the  14th  of  May,  1817.  Both  of 
them  were  in  reduced  circumstances,  and  Mr.  Aspinwall  says  that  his 
name  was  used  by  Stewart  without  a  shadow  of  authority  or  consent. 
Whatever  is  said  of  these  persons  tends  to  show  that  they  might  have 
yielded  to  the  temptation  and  have  committed  the  alleged  fraud. 

It  appears  from  the  evidence  that  the  heirs  of  Cazeau  always  resided 
in  Montreal,  and  were  not  in  affluent  circumstances,  and  that  they 
were  not  acquainted  with  Corbeaux,  Grubb,  or  Stewart,  that  they  did 
not  know  of  Stewart's  application  to  the  United  States,  and  never 
received  any  portion  of  the  money  appropriated  by  the  act  of  Congress. 

I  am  aware  of  no  principle  upon  which  it  can  be  held  that  the  pay- 
ment of  a  debt  upon  the  evidence  furnished  by  a  copy  of  an  instru- 
ment, without  proof  of  the  loss  of  the  original,  is  a  discharge  of  the 
debtor.  A  party  is  bound  to  produce  the  best  evidence  the  nature  of 
the  case  will  admit  of.  This  rule  does  not  need,  at  this  day,  any  ar- 
gument or  authority  in  its  support.  Now,  Stewart  did  not  produce 
the  original  instrument,  which  was  the  best  evidence.  If  there  had 
been  two  originals,  why  did  he  not  produce  one  of  them,  or  account 
for  its  non-production  ?  With  the  exception  of  the  very  slight  evi- 
dence furnished  by  the  recitals  in  the  original,  which  is  produced  by 
the  claimant,  there  is  absolutely  no  evidence  whatever  which  even 
tends  to  show  that  there  were  two  originals.  The  instrument  pro- 
duced was  in  the  possession  of  the  heirs  from  1808  to  1844,  and 
throughout  the  great  mass  of  the  evidence  no  allusion  is  made  to  the 
existence  of  another. 

But  it  is  clear,  also,  as  I  have  stated,  that  the  power  given  to  Cor- 
beaux was  revoked,  and  this  is  sufficient  to  show  the  invalidity  of  the 
payment  to  Stewart,  whether  there  were  two  originals  or  not.  Mr. 
Warden  states  that  the  instrument  was  deposited  in  his  office  and 
there  registered.  If  there  had  been  two  parts,  each  party  would 
naturally  have  kept  one  ;  but  if  there  had  been  but  one,  there  would 
have  been  a  good  reason  for  depositing  it  with  a  third  person,  as 
both  were  equally  interested  in  it.  It  is  certainly  improbable  that 
in  the  inception  of  the  proceedings,  either  party  would  have  suffered 
the  other  to  retain  the  original.  The  production  of  the  original,  then, 
by  one  party,  would  raise  a  strong  presumption  that  it  was  cancelled  ; 
and  this,  in  connexion  with  the  evidence  furnished  by  the  receipt  of 
Thille,  affords  sufficient  evidence  of  the  revocation. 

The  United  States,  then,  stand  in  this  position  :  They  have  paid 
the  sum  of  $42, 737  97,  which,  by  law,  belonged  to  the  legal  repre- 
sentatives of  Francis  Cazeau,  to  a  person  who  had  no  authority  to 
receive  it.  I  need  not  waste  words  or  reasoning  to  show  that  such  a 
payment  is  not  a  defence. 

In  the  month  of  June,  1844,  a  bill  was  passed  providing  for  the 
payment  of  one-fourth  of  the  sum  appropriated  by  the  act  of  1817, 
which  was  received  by  the  petitioner,  with  interest  from  May,  1818. 
This  sum  must  have  been  paid  upon  the  ground  that  one-fourth,  at 
least,  of  the  sum  of  $42,737  97  belonged  to  the  heirs  of  Cazeau  under 


60 


JACOB  BIGELOW. 


the  provisions  of  the  original  contract,  and  that  to  that  extent,  cer- 
tainly, the  payment  to  Stewart  was  wrongful.  The  sum  allowed  by 
the  act  1817,  was  made  up  by  estimating  the  amount  of  the  claim  at 
$12,276  64,  by  adding  to  it  interest  from  the  year  1777,  $29,463  60, 
and  by  two  other  items  amounting  to  about  $4, 000.  From  the  whole 
sum  was  deducted  a  credit  and  interest  of  about  $3,000.  This  is 
clearly  an  acknowledgment  by  the  United  States  that  interest  was 
due  on  the  original  claim.  When  the  act  of  1844  was  passed,  giving 
to  the  claimant  one-fourth  of  the  sum  originally  appropriated,  interest 
was  allowed  on  that,  constituting  a  further  acknowledgment  that  in- 
terest was  due,  and  admitting  also  that  the  payment  to  Stewart  was 
to  that  extent  wrongful.  It  would  be  difficult  to  conceive  of  any 
more  distinct  acknowledgment  that  interest  was  due,  than  is  contained 
in  these  two  acts. 

Was,  then,  the  payment  to  Stewart  wrongful?  I  think  it  was,  and 
that  it  is  no  answer  to  the  claim  now  made  against  the  United  States. 
The  statement  of  the  amount  due,  contained  in  the  petition,  appears 
to  be  correct.  It  is  calculated  there  to  amount,  on  the  15th  June, 
1855,  to  the  sum  of  $110,264  02  ;  to  this  should  be  added  interest 
to  the  1st  of  December,  1857,  on  the  sum  of  $42,737  97,  $6,283  85. 

It  has  been  argued  by  the  Solicitor  that  the  claim  allowed  by  the 
act  of  1817  had  no  foundation,  and  that  we  should  now  inquire  into 
its  merits.  But  we  are  now  nearly  forty  years  further  removed  from 
the  time  of  the  original  transaction  than  the  Congress  was  which 
passed  the  bill,  and  the  claim  was  then  examined  with  the  greatest 
care  and  deliberation.  The  act  of  1817  appears  to  me  to  stand  on 
the  same  ground  with  any  other  law  which  it  was  competent  for  Con- 
gress to  enact.  If  we  may  re-examine  this  claim  and  reject  it,  on 
the  ground  that  Congress  was  deceived,  it  would  be  difficult,  after 
that,  to  know  where  to  draw  the  line.  Congress  may  be  deceived 
by  false  evidence  and  representations  in  the  enactment  of  other  laws, 
as  well  as  those  by  which  money  is  appropriated.  I  do  not  think  it  was 
intended  to  confer  upon  this  Court  the  power  to  revise  the  legislation 
of  Congress  ;  and,  without  an  indisputable  authority,  and  the  most 
imperious  necessity,  it  is  a  power  which  I  should  hesitate  long  before 
assuming.  But  the  judgment  of  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Fletcher  vs.  Peck,  (6  Cranch,  87,)  covers  the 
whole  ground  here  assumed  by  the  Solicitor.  In  that  case,  Chief 
Justice  Marshall  says  :  "It  may  well  be  doubted  how  far  the  validity 
of  a  law  depends  upon  the  motives  of  its  framers,  and  how  far  the 
particular  inducements  operating  on  members  of  the  supreme  sove- 
reign power  of  a  state  to  the  formation  of  a  contract  by  that  power, 
are  examinable  in  a  court  of  justice.  If  the  principle  is  conceded, 
that  an  act  of  the  supreme  sovereign  power  might  be  declared  "null 
by  a  court,  in  consequence  of  the  means  which  procured  it,  still  there 
would  be  much  difficulty  in  saying  to  what  extent  those  means  must 
be  applied  to  produce  this  effect.  Must  it  be  direct  corruption,  or 
would  interest  or  undue  influence  of  any  kind  be  sufficient?  Must 
the  vitiating  cause  operate  on  a  majority,  or  on  what  number  of 


JACOB  BIGELOW. 


61 


members?  Would  the  act  be  null,  whatever  might  be  the  wish  of 
the  nation,  or  would  its  obligation  or  nullity  depend  on  the  public 
sentiment?"  The  chief  justice  also  says  :  "For  a  party  to  pronounce 
its  own  deed  invalid,  whatever  cause  may  be  assigned  for  its  inva- 
lidity, must  be  considered  as  a  mere  act  of  power,  which  must  find  its 
vindication  in  a  train  of  reasoning  not  often  heard  in  courts  of 
justice."  For  the  reason  above  stated,  I  am  of  opinion  that  we 
cannot  inquire  into  the  merits  of  the  original  claim. 


44th  Congress, 
2d  Session. 


SENATE. 


(  Eeport 
\  No.  610. 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


January  26,  1877.— Ordered  to  be  printed. 
Mr.  Wright  submitted  the  following 

EEPORT: 

[To  accompany  bill  S.  1103.] 

The  Committee  on  Revolutionary  Claims,  to  whom  ivas  referred  the  bill  (8. 
1103)  for  the  relief  of  the  heirs  or  legal  representatives  of  Francois  Cazeau, 
submit  the  following  report : 

The  petition  of  George  F.  Bigelow,  claiming  to  be  one  of  the  legal 
representatives  of  Fraugois  Cazeau,  which  accompanies  the  bill,  sets 
forth  in  substance  that  at  the  commencement  of  the  revolutionary  strug- 
gle said  Francois  Oazeau  was  a  resident  of  Montreal,  Canada ;  that  he 
secretly  espoused  the  cause  of  the  Eevolution ;  that  he  used  his  large 
means  and  extensive  influence  freely  in  behalf  of  that  cause ;  that  hav- 
ing been  discovered  by  the  officers  of  the  Crown  as  one  who  aided  the 
cause  of  the  colonies,  he  was  captured  and  thrown  into  prison,  where 
he  remained  several  years ;  was  only  released  on  condition  that  he 
should  flee  his  country  and  never  return ;  his  vast  wealth  was  confis- 
cated, and  being  sent  to  France,  he  lived  there  in  great  poverty  until 
1815,  when  he  died;  that  during  this  time  he  used  every  effort  in  his 
power  to  obtain  from  this  Government  compensation  for  the  money  ad- 
vanced by  him  in  its  cause,  but  not  until  two  years  after  his  death  was 
an  act  passed  granting  his  legal  representatives  relief  in  the  sum  of 
$42,737.97;  that  this  money,  through  grossly  negligent  action  of  the 
Treasury,  was  wrongfully  paid  to  parties  not  entitled  to  receive  it,  and 
that  the  legal  representatives  of  said  Cazeau,  for  whom  said  act  was 
passed,  did  not  receive  the  benefit  thereof. 

The  bill  now  proposes  to  refer  the  whole  matter  to  the  Court  of  Claims 
for  adjudication  and  settlement. 

The  legislative  history  of  this  claim  is  briefly  as  follows : 

After  being  several  times  before  Congress  the  act  of  March  3,  1817, 
was  passed,  as  stated  in  the  petition.  As  stated  in  the  report  of  the 
committee  accompanying  the  bill,  the  account  upon  which  the  bill  was 
based  was  stated  as  follows: 

United  States  to  Francois  Cazeau. 
Dr. 

March,  1777.  To  8,000  bushels  wheat  

May,     1777.  To  three  boats  loaded  with  wine,  barley,  and  clothing  

177  8,  177  9,  To  advances  for  obtaining  intelligence  

and  1780. 

To  interest  for  forty  years  

To  expenses  and  commission  on  wheat..    

To  expenses  and  commission  on  boats  loaded  with  wine,  barley,  and  cloth 
ing  


$8,000  00 
4, 000  00 
276  64 


12,276  64 
29,463  60 
2,  633  50 

1.404  43 


45,777  97 


2 


FRANCOIS  CAZEAU. 


By  cash  paid  in  1783 
By  interest  on  same 


$1,000 
2,  040 


$3,040  00 


Balance  due 


42,737  97 


Iii  the  Fifteenth  Congress,  the  one  succeeding  that  at  which  this  bill 
was  passed,  a  petition  for  relief  was  presented  to  the  House,  stating 
that  this  money  thus  appropriated  had  been  paid  to  the  wrong  party. 
No  action  was  taken  then  or  subsequently,  though  the  claim  was  often 
presented,  until  in  the  Twenty-fourth  Congress,  when,  the  whole  matter 
having  been  referred  to  the  Solicitor  of  the  Treasury  for  examination, 
that  officer,  Hon.  Virgil  Maxcy,  made  an  elaborate  report  on  the  whole 
subject,  (Senate  Doc.  428,  first  session  Twenty-fourth  Congress,)  and 
the  Judiciary  Committee,  acting  upon  this  report,  brought  in  a  bill 
(S.  130,  Rep.  72  of  second  session  same  Congress,)  to  pay  the  legal 
representatives  of  Cazeau  the  amount  originally  appropriated  in  1817. 
This  bill  passed  the  Senate,  but  died  in  the  House. 

At  the  next  Congress  the  same  committee  reported  a  bill  (S.  92,  Rep. 
41,  second  session)  allowing  $60,655.78,  (the  increase  in  the  amount  be- 
ing nmde  on  account  of  additional  interest,)  aud  this  bill  also  passed 
the  Senate;  and  again,  in  the  next  Congress,  the  Twenty-sixth,  a  simi- 
lar bill  passed  the  Senate ;  but  in  both  cases  the  House  failed  to  take 
action. 

In  the  Twenty-eighth  Congress,  an  act,  (of  June  15, 1844,)  originating 
in  the  House,  became  a  law,  by  which  the  sum  of  $27,352.32  was  appro- 
priated for  this  claim.  The  act  recites  that  this  amount  is  "  one-fourth 
the  sum  appropriated  under  an  act  of  Congress  approved  the  3d  of 
March,  1817,  with  interest  from  May,  1818." 

In  the  next  Congress,  the  Committee  on  the  Judiciary  of  the  House 
report  a  bill  (Rep.  694,  first  session  Twenty-ninth  Congress)  allowing 
$48,391.52,  which  amouut  is  reached  by  computing  interest  on  the  orig- 
inal sum  advanced,  up  to  1846,  and  deducting  therefrom  the  payments 
of  1783  aud  by  act  of  1844,  with  iuterest  thereon.  The  same  bill  was 
reported  again  at  the  next,  the  Thirtieth,  Congress  by  the  same  com- 
mittee, but  did  not  pass  in  either  case.  The  claim  was  presented  to  one 
or  the  other  house  at  various  tmes,  until  the  Fortieth  Congress,  with- 
out receiving  further  action. 

And  thus  the  matter  has  remained  until  the  presentation  of  the  peti- 
tion now  before  us,  to  wit,  on  the  28th  of  June,  1876. 

How  it  occurred  that  Congress  in  1844  (Twenty-eighth  Congress) 
passed  the  act  of  that  year  allowing  one-fourth  of  the  claim  and  no 
more,  will  sufficiently  appear  from  the  following  extracts  from  the  re- 
port of  Mr.  Saunders,  of  the  House,  (No.  355,  first  session.)  After  stat- 
ing the  nature  of  the  claim,  the  resolutions  of  Congress  favorable  thereto, 
the  report  of  Mr.  Robert  Morris,  u  the  superintendent  of  finance,"  who 
sent  it  back  to  Congress  with  objections,  the  favorable  action  of  the 
"committee  appointed  for  the  settlement  of  the  accounts  of  Canada 
refugees,  &c,"  the  report  of  the  "  board  of  the  Treasury  "  thereon  adverse 
to  its  payment,  the  action  of  Congress  in  1786  repealing  the  resolution 
of  1784,  under  which  the  allowance  was  made,  which  was  objected  to  by 
Mr.  Morris,  and  further  showing  that  no  action  was  afterward  taken 
thereon  until  1817,  when  a  favorable  report  was  made  by  a  committee 
of  the  Senate — we  say,  after  setting  forth  all  these  matters,  this  report 
of  Mr.  Saunders  proceeds  : 


FRANgOlS  CAZEAU. 


3 


In  obedience  to  this  report  a  bill  was  passed  appropriating  $42,737.9~,  to  be  paid  "  to 
the  legal  representatives  of  Francis  Cazeau,  late  merchant  at  Montreal,  or  to  his 
assignee  or  attorney,  or  other  person  lawfully  entitled  to  receive  the  same."  The 
amount  thus  appropriated  was  drawn  from  the  Treasury  by  J.  B.  Stewart,  under  an 
assignment  and  power  of  attorney  from  Francis  Cazeau  to  Francis  Carbreaux,  which 
assignment  the  present  claimant  charges  to  have  been  fraudulent,  and  the  power  of 
attorney  to  have  been  vacated  by  the  death  of  the  maker.  This  presents  the  question 
whether  the  heirs  of  Francis  Cazeau,  the  present  claimants,  were  alone  entitled  to 
receive  the  amount  appropriated  under  the  act  of  1817,  and  whether  the  payment  al- 
ready made  is  a  bar  to  any  portion  of  the  claim  ?  It  appears  that  in  1807  Francis  Cazeau 
did,  by  deed  duly  executed,  transfer  and  assign  over  to  Francis  Carbreaux  three-fourths 
of  his  claim  on  the  United  States,  and  gave  him  an  irrevocable  power  of  attorney  to 
prosecute  and  receive  the  same,  as  well  as  the  remaining  fourth ;  that  in  1808  he  insti- 
tuted criminal  proceedings  in  France  against  Carbreaux  for  the  purpose  of  revoking 
this  agreement  and  of  having  his  papers  surrendered.  It  does  not  satisfactorily  appear 
what  was  the  result  of  those  proceedings,  though  it  does  appear  that  Cazeau  obtained 
possession  of  the  original  papers,  which  he  forwarded  to  General  Mason,  of  Georgetown, 
in  1809,  to  be  again  presented  to  Congress ;  they  were  not  presented,  however,  but  re- 
turned to  the  grandson  of  Cazeau,  who  held  them  at  the  time  of  the  old  man's  death, 
in  1815;  that  shortly  after  the  death  of  Cazeau,  with  copies  of  these  papers,  which 
were  to  be  had  from  the  register's  office  in  Paris,  and  under  a  power  of  attorney  from 
Carbreaux,  J.  B.  Stewart  succeeded  in  effecting  the  passage  of  the  act  of  1817,  and  of 
drawing  the  money  from  the  Treasury.  There  can  be  no  question  that  a  power  of 
attorney,  though  professing  on  its  face  to  be  irrevocable,  is  revoked  by  the  death  of 
the  grantor,  though  there  may  be  some  doubt  whether  such  would  be  the  case  of  a 
power  coupled  with  an  interest;  but  however  that  may  be,  the  difficulty  in  the 
present  case  is  not  as  to  the  revocation  of  the  power,  but  as  to  the  existing 
validity  of  the  assignment.  In  1836,  under  a  resolution  of  the  Senate,  the  whole 
matter  was  referred  to  the  Solicitor  of  the  Treasury,  to  inquire,  1st,  as  to  the  justice  of 
the  original  claim  ;  2d,  whether  J.  B.  Stewart  was  the  authorized  agent  of  the  claimants ; 
3d,  whether  the  present  claimants  were  the  heirs  of  Francis  Cazeau.  The  report  is  a 
very  full  one,  and  the  answer  on  each  point  is  in  favor  of  claimants.  (See  Senate  Doc, 
Twenty-fourth  Congress,  first  session,  p.  428.)  But  the  report  of  the  Solicitor  does 
not  remove  the  difficulty  as  to  the  assignment.  It  may  be  true,  as  is  alleged  by  the 
claimants,  and  as  the  report  concurs  in,  that  Carbreaux  paid  no  part  of  the  considera- 
tion expressed  in  the  deedxand  that  it  was  fraudulently  obtained;  still,  it  had  not  been 
canceled  by  any  judicial  tribunal,  nor  had  there  been  any  reconveyance.  It  simply 
appears  that  there  was  a  contest  about  the  papers,  a  citation  and  answer  by  Carbreaux, 
with  a  protest  against  any  surrender  of  his  right,  and  the  papers  being  afterward  in 
Cazeau's  possession,  there  was  no  action  on  the  part  of  Carbreaux  until  after  Cazeau's 
death ;  but  notice  was  given  the  Government  by  Cazeau  of  his  still  holding  the  claim. 
It  is  possible  the  circumstances  were  such  that  a  court  of  equity  would  have  en- 
joined the  Treasury  from  paying  the  money  over  to  Carbreaux,  yet  the  money  was  paid 
without  any  notice  or  suspicion  of  fraud.  It  then  becomes  a  question  of  loss  between 
the  United  States  and  the  claimant,  and  as  the  money  has  been  once  paid  in  good  faith, 
and  to  one  duly  authorized  to  receive  a  portion  of  it,  under  an  assignment,  the  committee 
are  of  opinion  that  there  is  no  obligation  to  pay  it  over  again.  Under  this  view  of  the 
case,  the  committee  report  a  bill  for  one-fourth  of  the  sum  appropriated  under  the  act 
of  1817,  with  interest  from  May,  1818,  the  time  of  the  demand  in  behalf  of  the  heirs 
of  Francis  Cazeau. 


The  conclusion  reached  by  that  report  your  committee  are  not  dis- 
posed, under  all  the  circumstances,  to  disturb. 

We  therefore  report  the  bill  back  and  recommend  its  indefinite  post- 
ponement. 


Statement. 


One-fourth  of  the  appropriation  under  the  act  of  1817 
Interest  from  1818 — say  26  years  


$10,684  50 
16,667  82 


Amount  due  the  heirs 


27, 352  32 


41st  Congress, 
2d  Session. 


SENATE. 


i  liEFOKT 

\  No.  200. 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


June  3,  1870.— Ordered  to  be  printed. 

Mr.  Fowler  made  the  following 

REPORT. 

[To  accompany  bill  S.  No.  96C] 

The  Committee  on  Revolutionary  Claims,  to  whom  teas  referred  the  petition 
of  Frederic!:  Vincent,  administrator  of  James  Le  Gaze,  surviving  partner 
of  Le  Gaze  and  Mallet,  having  had  the  same  under  consideration, 
report  : 

It  appears  that  the  sum  of  $4,890  82  was  due  the  firm  of  Le  ( 5aze  and 
Mallet,  on  the  1st  day  of  July,  1781,  for  advances  made  and 
furnished  to  the  United  States  during  the  revolutionary  war,  under  an 
adjustment  by  the  superintendent  of  finance.  This  balance  was  duly 
stated  on  the  books  of  the  confederation,  under  that  date,  and  was 
reported  to  Congress,  with  a  view  to  provide  for  its  payment.  The 
government  being  then  unable  to  pay  these  demands,  Congress,  on  the 
3d  of  July,  1781,  enacted  "That  an  interest  of  six  per  cent,  per  annum 
shall  be  allowed  to  all  creditors  of  the  United  States  for  supplies  fur- 
nished or  services  done  from  the  time  that  payment  became  due." 

In  1790  the  government  being  still  unable  to  pay  these  claims,  Con- 
gress passed  an  act,  August  1, 1790,  authorizing  the  funding  of  these 
debts  by  a  subscription  to  a  loan,  as  therein  provided.  By  act  of  May 
30, 1794,  these  debts  being  still  unsettled,  Congress  extended  the  pro- 
visions of  the  act  of  1790,  declared  that  interest  shall  be  allowed  upon 
all  registered  claims,  whether  subscribed  or  not,  and  these  provisions 
w  ere  continued  to  December  31, 1797. 

It  appears  from  the  papers  in  this  case  that  Mr.  Mallet  died  in  1784, 
and  Mr.  Le  Caze,  who  survived  him,  having  large  possessions  in  the 
island  of  San  Domingo,  went  there,  and  is  supposed  to  have  perished 
in  the  insurrection  of  1789. 

This  firm  had  made  large  advances  to  the  government  during  the 
war,  and  upon  the  final  adjustment  of  their  accounts,  on  the  1st  Qf  July, 
1784,  a  balance  of  $4,890  82  was  found  in  their  favor.  This  balance 
was  duly  registered  on  the  books  of  the  Treasury  Department  at  the 
time.  In  the  year  1794  the  account  was  re-examined,  and  the  same 
balance  re-registered  as  due  by  the  government  of  the  United  States. 

The  committee  having  indubitable  evidence  of  the  justice  of  this 
claim,  and  being  satisfied  that  it  should  be  liquidated  according  to  the 
principle  of  the  act  of  1790,  providing  for  a  registered  loan,  have  reported 
a  bill  upon  the  provisions  then  made.  The  act  of  1790,  after  providing 
for  the  registered  loan,  provides  "that  such  creditors  as  may  not  sub- 
scribe shall  nevertheless  receive  a  rate  per  centum  equal  to  the  interest 
payable  to  subscribing  creditors." 


2 


FREDERICK  VINCENT. 


The  committee  have,  therefore,  directed  a  settlement  to  be  made  under 
the  positive  provisions  of  the  act  of  1790,  above  referred  to,  with  an  al- 
lowance of  interest  from  December,  1844. 

On  the  31st  of  January,  1855,  Congress  passed  an  act  providing  for 
the  payment  of  the  original  debt,  but  omitting  the  interest,  and  the 
committee  being  satisfied  that  the  claim  is  justly  entitled  to  interest 
under  the  demand  of  1844,  report  a  bill  accordingly. 


Z 


43d  CongresSj  ) 
1st  Session,  ) 


SENATE. 


(  EEPORr 
\  No.  396. 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


May  '29,  1874.— Ordered  to  be  printed. 

Mr.  Coxover  submitted  the  following 

REPORT: 

[To  accompany  bill  S.  314.] 

The  Committee  on  Revolutionary  Claims,  to  whom  were  referred  the  petition 
and  accompanying  papers  of  Madame  A.  Don  Bernard,  nee  de  Rochefer- 
mo  is,  beg  leave  to  report : 

That  the  said  petition  and  accompanying  papers  set  fortli  that 
Madame  Bernard  is  the  grand-daughter  and  sole  heir  at  law  of  Brig. 
Gen.  Mathew  Alexis  de  Bochefermois,  a  native  of  France,  who  was 
commissioned,  by  President  John  Hancock,  a  brigadier-general  in  the 
American  Army,  and  served  throughout  the  war  of  the  Revolution 
and  was  honorably  discharged  at  the  end  of  that  war ;  that  her  said 
ancestor  was  never  paid  for  his  said  military  services,  and  died  in  France 
some  years  ago  without  having  received  any  pecuniary  recognition  of 
his  said  services ;  that  he  accompanied  General  Lafayette  to  this  coun- 
try, and  entered  the  military  service  of  America  at  the  same  time  with 
said  Lafayette  ;  that  the  said  Madame  Bernard  has  become  poor  by  ad- 
verse circumstances  since  the  death  of  her  grandfather,  and  is  compelled 
to  ask  Congress  to  allow  her  the  compensation  and  reward  which  would 
have  been  allowed  to  him  had  he  made  application  to  Congress  for  it  in 
his  life-time,  after  being  honorably  discharged  and  resuming  his  residence 
in  that  country,  and  remaining  there  until  his  death. 

2.  That  he  did  not  in  his  life-time  make  application  to  this  Govern- 
ment for  pecuniary  compensation  for  his  services';  that  he  was  a  man 
of  means,  and  had  no  occasion  to  ask  compensation;  that  he  was  never 
paid  for  the  same. 

3.  That  he  was  entitled  to  pay  as  a  brigadier-general  in  the  American 
Army,  and  his  heir  at  law  should  be  allowed  compensation  at  the  same 
rate,  with  interest. 

The  bill  herewith  reported  sends  the  ease  to  the  Commissioner  of  Pen- 
sions, with  instructions  to  take  the  evidence  to  fix  the  time  of  service 
and  to  ascertain  who  the  rightful  heir  or  heirs  at  law  of  said  Bochefer- 
naois  are.  and  to  pay  to  such  heir  or  heirs  the  sum  so  found  due.  This 
embodies  the  most  favorable  plan  to  arrive  at  the  facts  and  the  fairest 
way  to  deal  with  the  heir  or  heirs  and  to  protect  the  Government. 

The  justice  of  recognizing  and  paying  this  claim  seems  to  be  supported 
by  the  action  of  Congress  with  respect  to  General  Lafayette.  Congress 
commenced  by  allowing  him  $24,4:24:,  being  the  amount  of  his  pay  and 
emoluments  as  a  major-general  during  the  time  he  was  in  the  service  of 
the  Cnited  States.'"  '  (See  aet  of  Congress  March  27,  1794,  1  U.  S.  Stat, 
at  Large,  p.  351.)    Then,  in  1803,  Congress  allowed  him  eleven  thousand. 


MADAME  A.  DON  BERNARD. 


five  hundred  acres  of  laud,  (2  U.  S.  Stat,  at  Large,  p.  236,  sec.  4.)  Again, 
on  the  28th  of  December,  1824,  (6  U.  S.  Stat,  at  Large,  p.  321,)  Congress 
passed  a  law  declaring,  in  the  1st  section,  that  " in  consideration  of  the 
services  and  sacrifices  of  General  Lafayette  in  the  war  of  the  Revolution, 
the  Secretary  of  the  Treasury  be,  and  he  is  hereby,  authorized  to  pay  him 
the  sum  of  8200,000,"  &c. :  and,  in  the  2d  section,  grants  him  one  township 
o  f  1  a  i  id .  The  generosity  and  justice  of  Con  gr  ess  to  ward  that'  distinguished 
patriot,  thus  so  often  and  so  munificently  manifested,  afford  the  fullest 
justification  and  the  most  distinguished  precedent  for  this  action  of  your 
committee.  It  does  not  seem  that  General  Lafayette  applied  to  Congress  for 
these  allowances  and  appropriations,  but  they  were  the  outgrowth  of  patri- 
otic justice  toward  a  meritorious  foreign  officer,  who  came  to  our  aid  in 
our  extreme  trouble.  The  committee  is  not  able  to  distinguish  any  dif- 
ference in  the  two  cases  of  General  Lafayette  and  General  Kocheferinois, 
so  far  as  they,  as  young  French  officers,  volunteered  their  services  and 
served  our  country  in  the  revolutionary  struggle.  Both  were  officers  of 
high  rank,  and  both  were  honorably  discharged  the  service  after  the 
struggle  ended.  If  it  was  right  to  allow  pay  and  emolument  to  one  for 
his  military  services  as  a  major-general,  as  was  the  case,  on  the  27th 
March,  1794,  the  committee  cannot  perceive  any  good  reason  for  not 
doing  the  same  thing  for  the  other  as  a  brigadier-general. 

But  Congress  went  further  in  the  case  of  General  Lafayette  and  al- 
lowed him,  on  the- 1st  December,  1821,  in  addition,  the  sum  of  $200,000 
for  his  services  and  sacrifices  in  our  cause.  It  does  not  seem  that  this 
was  asked  for  by  General  Lafayette.  It  is  true  that  he  was  then  alive 
and  was  in  this  country  on  a  visit  at  that  time. 

But  if  he  did  request  pay,  it  did  not,  we  submit,  strengthen  his  claim, 
and  cannot  weaken  that  of  the  heir  or  heirs  at  law  of  General  Roehefer- 
nois.  The  fa  -t  remains  that  he  was  never  paid  ;  that  the  United  States 
owes  him  his  pay  and  emoluments  as  an  officer,  and  gratitude  for  his 
gallant  services. 

His  needy  heirs  appeal  to  Congress  to  pay  them  what  was  so  justly 
due  to  him  in  equity  if  not  in  law.  Your  committee  has  not  reproduced 
other  cases  besides  that  of  General  Lafayette,  as  they  might  have  done, 
because  they  do  not  think  it  necessary.  There  seemed  to  be  a  fitness  in 
this  precedent  in  view  of  the  circumstances  which  surrounded  the  two 
officers  in  their  volunteering  and  service.  There  is  another  resemblance  : 
neither  of  them  demanded  pay  at  the  end  of  the  war.  Both  were  gen- 
tlemen of  fortune  at  the  time.  The  one  (General  Lafayette)  lost  his 
sooner  than  the  other,  and  thus  excited  the  early  sympathy  and  active 
Justice  of  the  United  States  toward  him;  whereas,  in  the  case  of  Gen- 
eral Bocheferinois,  the  attention  of  Congress  was  not  called  to  his  neces- 
sities, and  its  generosity  and  justice  invoked,  until  his  only  heir  and  sur- 
viving representative  has  made  this  appeal. 

The  committee  recommend  the  passage  of  the  accompanying  bill. 


O 


